**CONTENTS**

FEDERALIST No. 1. General Introduction

FEDERALIST No. 2. On the Dangers from Foreign Force and Influence

FEDERALIST No. 3. Continuation: On the Dangers from Foreign Force and Influence

FEDERALIST No. 4. Continuation: On the Dangers from Foreign Force and Influence

FEDERALIST No. 5. Continuation: On the Dangers from Foreign Force and Influence

FEDERALIST No. 6. On the Dangers from Disputes Between the States

FEDERALIST No. 7. Continuation: On the Dangers from Disputes Between the States

FEDERALIST No. 8. The Consequences of Conflict Between the States

FEDERALIST No. 9. The Union as a Protection Against Domestic Division and Uprising

FEDERALIST No. 10. Continuation: The Union as a Protection Against Domestic Division and Uprising

FEDERALIST No. 11. The Value of the Union for Trade Relations and a Navy

FEDERALIST No. 12. The Value of the Union for Revenue

FEDERALIST No. 13. The Advantage of the Union for Efficient Government

FEDERALIST No. 14. Answering Objections to the Proposed Constitution Based on the Size of the Territory

FEDERALIST No. 15. The Weakness of the Current Confederation to Preserve the Union

FEDERALIST No. 16. Continuation: The Weakness of the Current Confederation to Preserve the Union

FEDERALIST No. 17. Continuation: The Weakness of the Current Confederation to Preserve the Union

FEDERALIST No. 18. Continuation: The Weakness of the Current Confederation to Preserve the Union

FEDERALIST No. 19. Continuation: The Weakness of the Current Confederation to Preserve the Union

FEDERALIST No. 20. The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union)

FEDERALIST No. 21. Other Defects of the Present Confederation

FEDERALIST No. 22. The Same Subject Continued (Other Defects of the Present Confederation)

FEDERALIST No. 23. The Necessity of a Government as Energetic as the One Proposed for the Preservation of the Union

FEDERALIST No. 24. The Powers Necessary for the Common Defense Further Considered

FEDERALIST No. 25. The Same Subject Continued (The Powers Necessary for the Common Defense Further Considered)

FEDERALIST No. 26. Considering the Idea of Restraining Legislative Authority Regarding the Common Defense

FEDERALIST No. 27. The Same Subject Continued (Considering the Idea of Restraining Legislative Authority Regarding the Common Defense)

FEDERALIST No. 28. The Same Subject Continued (Considering the Idea of Restraining Legislative Authority Regarding the Common Defense)

FEDERALIST No. 29. Concerning the Militia

FEDERALIST No. 30. Concerning the General Power of Taxation

FEDERALIST No. 31. The Same Subject Continued (Concerning the General Power of Taxation)

FEDERALIST No. 32. The Same Subject Continued (Concerning the General Power of Taxation)

FEDERALIST No. 33. The Same Subject Continued (Concerning the General Power of Taxation)

FEDERALIST No. 34. The Same Subject Continued (Concerning the General Power of Taxation)

FEDERALIST No. 35. The Same Subject Continued (Concerning the General Power of Taxation)

FEDERALIST No. 36. The Same Subject Continued (Concerning the General Power of Taxation)

FEDERALIST No. 37. Concerning the Difficulties Faced by the Convention in Creating an Appropriate Form of Government

FEDERALIST No. 38. The Same Subject Continued, and the Incoherence of the Objections to the New Plan Exposed

FEDERALIST No. 39. The Plan’s Consistency with Republican Principles

FEDERALIST No. 40. On the Powers of the Convention to Form a Mixed Government Examined and Upheld.

FEDERALIST No. 41. An Overview of the Powers Granted by the Constitution

FEDERALIST No. 42. Further Consideration of the Powers Granted by the Constitution

FEDERALIST No. 43. Continued Discussion of the Same Topic (Further Consideration of the Powers Granted by the Constitution)

FEDERALIST No. 44. Restrictions on the Authority of the Individual States

FEDERALIST No. 45. The Alleged Danger of the Powers of the Union to the State Governments

FEDERALIST No. 46. Comparing the Influence of State and Federal Governments

FEDERALIST No. 47. The Specific Structure of the New Government and the Division of Power Among Its Various Parts

FEDERALIST No. 48. The Government Branches Should Not Be So Separated as to Lack Constitutional Control Over One Another

FEDERALIST No. 49. Method for Guarding Against Encroachments by Any One Branch of Government by Appealing to the People Through a Convention

FEDERALIST No. 50. Periodic Appeals to the People Considered

FEDERALIST No. 51. The Structure of the Government Must Provide Proper Checks and Balances Among the Various Branches

FEDERALIST No. 52. The House of Representatives

FEDERALIST No. 53. Continued Discussion of the Same Topic (The House of Representatives)

FEDERALIST No. 54. The Apportionment of Members Among the States

FEDERALIST No. 55. The Total Number of Members in the House of Representatives

FEDERALIST No. 56. Continued Discussion of the Same Topic (The Total Number of the House of Representatives)

FEDERALIST No. 57. The Alleged Tendency of the New System to Promote the Few at the Expense of the Many Considered in Relation to Representation

FEDERALIST No. 58. The Objection That the Number of Members Will Not Increase as the Population Grows

FEDERALIST No. 59. Concerning the Power of Congress to Regulate the Election of Representatives

FEDERALIST No. 60. The Same Subject Continued (Regarding the Power of Congress to Regulate the Election of Members)

FEDERALIST No. 61. The Same Subject Continued (Regarding the Power of Congress to Regulate the Election of Members)

FEDERALIST No. 62. The Senate

FEDERALIST No. 63. The Senate Continued

FEDERALIST No. 64. The Powers of the Senate

FEDERALIST No. 65. The Powers of the Senate Continued

FEDERALIST No. 66. Further Consideration of Objections to the Senate’s Power to Sit as a Court for Impeachments

FEDERALIST No. 67. The Executive Department

FEDERALIST No. 68. The Method of Electing the President

FEDERALIST No. 69. The True Nature of the Executive

FEDERALIST No. 70. Further Consideration of the Executive Department

FEDERALIST No. 71. The Length of the Executive’s Term in Office

FEDERALIST No. 72. The Same Subject Continued, and Consideration of the Executive’s Re-Eligibility

FEDERALIST No. 73. Funding for the Executive and the Veto Power

FEDERALIST No. 74. The Executive’s Command of the Military and Naval Forces, and the Power to Grant Pardons

FEDERALIST No. 75. The Executive’s Treaty-Making Power

FEDERALIST No. 76. The Executive’s Power to Appoint

FEDERALIST No. 77. The Appointment Power Continued and Additional Powers of the Executive

FEDERALIST No. 78. The Judiciary Department

FEDERALIST No. 79. The Judiciary Continued

FEDERALIST No. 80. The Powers of the Judiciary

FEDERALIST No. 81. The Judiciary Continued, and the Distribution of the Judicial Authority.

FEDERALIST No. 82. The Judiciary Continued.

FEDERALIST No. 83. The Judiciary Continued in Relation to Trial by Jury

FEDERALIST No. 84. Certain General and Miscellaneous Objections to the Constitution Considered and Answered.

FEDERALIST No. 85. Concluding Remarks

------------------------------------------------------------------------

## FEDERALIST No. 1. General Introduction

### For the Independent Journal. Saturday, October 27, 1787

HAMILTON

To the People of the State of New York:

AFTER clear and unmistakable evidence showing the ineffectiveness of the current federal government, you are now called upon to consider a new Constitution for the United States of America. The importance of this subject speaks for itself—it concerns nothing less than the existence of the UNION, the safety and wellbeing of its constituent parts, and the fate of an empire that, in many ways, is one of the most significant in the world. It is often noted that it seems to have been left to the people of this nation, by their actions and example, to decide the important question of whether societies of people are truly able to establish good government through reason and choice, or whether they are forever destined to rely on chance and force for their political systems. If there is any truth in this observation, then the current crisis may rightly be considered the moment when that decision must be made—and a wrong choice in our actions may, in this context, deserve to be seen as a general misfortune for all mankind.

This idea adds the motivation of a love of humanity, along with patriotism, to increase the concern that all thoughtful and good people must feel about this outcome. We will be fortunate if our choice is guided by a wise assessment of our true interests, free from complications and bias caused by matters unconnected to the public good. But this is something more to be earnestly wished for than realistically expected. The plan put before us affects too many particular interests and alters too many local institutions, for its discussion not to involve many issues irrelevant to its merits, and many motives, passions, and prejudices that are not helpful to discovering the truth.

Among the most significant obstacles the new Constitution will face is the clear vested interest of a certain group of men in every State to resist any changes that might risk reducing the power, profit, and influence of the offices they hold under the State governments; as well as the distorted ambition of another group, who either hope to gain personally from the turmoil in their country, or who imagine that dividing the nation into several smaller confederacies will offer them a better chance to rise than remaining united under one government.

Yet, it is not my intention to dwell on such points. I am well aware that it would be unfair to suspect the opposition of any group of men purely because their circumstances might cause them to be suspected of having selfish or ambitious motives. Fairness requires us to admit that even such people may act from honest intentions; and there can be no doubt that much of the opposition that has appeared, or may appear in the future, will come from sources that are at least free from blame, and possibly even respectable—the honest mistakes of minds led astray by preconceived doubts and fears. So many and so strong are the reasons that can distort judgment that we often see wise and good people on the wrong as well as the right side of very important issues for society. If properly considered, this fact would teach those who are most confident in their own righteousness to be moderate. Another reason for caution is the idea that we cannot always be sure that those who promote the truth are guided by better principles than their opponents. Ambition, greed, personal rivalry, party opposition, and many other motives no more admirable than these tend to influence those who support a good cause just as much as those who oppose it. Even without these reasons for moderation, nothing could be less wise than the fanaticism that political parties have always shown. For in politics, as in religion, it is just as foolish to try to win converts through force. Mistaken beliefs in either field can rarely be corrected by persecution.

And yet, as right as these thoughts may seem, we are already seeing clear signs that what has happened in all previous great national debates will happen again. A surge of anger and bitter passions will be unleashed. Judging from the behavior of the opposing sides, we might conclude that they both hope to prove the rightness of their opinions, and to win more supporters, by shouting louder and using more biting insults. An informed enthusiasm for a strong and effective government will be branded as the product of a mind that loves despotism and opposes liberty. An excessive suspicion of dangers to the people's rights—a fault more of thinking than of feeling—will be dismissed as fakery and manipulation, an old trick to gain popularity at the public's expense. People will forget, on one side, that suspicion often goes along with love, and that genuine passion for liberty is often mixed with a spirit of narrow and unfair distrust. On the other side, it will also be forgotten that a strong government is essential for securing liberty; that, in the eyes of sound and informed judgment, their interests can never be separated; and that dangerous ambition more often hides behind the impressive mask of defending the people's rights than it does under the more obvious show of supporting firm government. History will teach us that using a concern for the people's rights has more often led to despotism than defending government firmness, and that the majority of those who have destroyed freedom in republics started by courting favor with the people—beginning as demagogues and ending as tyrants.

In the previous points, I have aimed, fellow citizens, to warn you against any attempts, from any direction, to sway your decision about this critically important matter by anything except the evidence of truth. You have, no doubt, also gathered from what I have said that I am not opposed to the new Constitution. Indeed, my countrymen, I admit to you that, after giving it careful thought, I clearly believe it is in your interest to adopt it. I am convinced this is the safest path for your liberty, your dignity, and your happiness. I do not pretend to have doubts I do not feel. I will not pass off the appearance of indecision when I have made up my mind. I openly acknowledge my beliefs to you, and I will freely share my reasons. A clear conscience does not hide its intentions. I will not continue to make declarations about my motives—they must remain a matter of my own conscience. My arguments will be presented openly to all and can be judged by all. At the very least, they will be offered in a spirit that does not disgrace the cause of truth.

I plan, in a series of papers, to discuss the following important topics:

THE VALUE OF THE UNION FOR YOUR POLITICAL PROSPERITY  
THE INADEQUACY OF THE CURRENT CONFEDERATION TO PRESERVE THAT UNION  
THE NEED FOR A GOVERNMENT AT LEAST AS ENERGETIC AS THE ONE PROPOSED, TO ACHIEVE THIS GOAL  
THE CONSISTENCY OF THE PROPOSED CONSTITUTION WITH THE TRUE PRINCIPLES OF REPUBLICAN GOVERNMENT  

ITS ANALOGY TO YOUR OWN STATE CONSTITUTION  
and lastly, THE ADDITIONAL SECURITY WHICH ITS ADOPTION WILL PROVIDE FOR PRESERVING THAT FORM OF GOVERNMENT, LIBERTY, AND PROPERTY.

As this discussion continues, I will strive to provide satisfactory answers to all objections that may appear and seem worthy of your attention.

It might be considered unnecessary to argue for the utility of the UNION, a point surely deeply felt by the majority of people in every State—something most think is beyond dispute. Yet, in truth, we already hear it whispered in private groups among those who oppose the new Constitution, that the thirteen States are too large for any general system and that we inevitably must resort to separate confederacies, each a distinct portion of the whole.(1) This idea will likely be gradually spread until there are enough followers to prompt an open declaration of it. Nothing is more clear, to those able to take a broad view of the matter, than the choice between adopting the new Constitution or seeing the Union break apart. Therefore, it will be useful to start by examining the advantages of Union, as well as the definite evils and probable dangers that every State would face if it were dissolved. This will be the topic of my next address.

PUBLIUS

1. The same idea, if you follow the arguments to their consequences, appears in several recent publications against the new Constitution.

## FEDERALIST No. 2. Concerning Dangers from Foreign Force and Influence

### For the Independent Journal. Wednesday, October 31, 1787

JAY

To the People of the State of New York:

When the people of America consider that they are now called upon to make a decision whose consequences may prove among the most important they will ever face, it’s clear that they ought to take a thorough and very careful look at the issue.

Nothing is more certain than the absolute necessity of government, and it is equally undeniable that whenever and however it is established, the people must surrender some of their natural rights in order to invest it with adequate powers. It is, therefore, well worth considering whether it would serve the interests of the American people better to unite as one nation under a single federal government, or to divide themselves into separate confederacies, giving to the head of each the same type of powers that they are advised to grant a single national government.

Until recently, it was a commonly accepted and uncontested opinion that the prosperity of the American people depended on staying firmly united, and the hopes, prayers, and efforts of our best and wisest citizens have continuously been directed toward that goal. Now, however, some politicians claim that this view is mistaken, and that instead of seeking safety and happiness in unity, we should look for it in dividing the States into distinct confederacies or sovereignties. However unusual this new idea may seem, it does have its supporters; and certain individuals who once opposed it now count themselves among its adherents. Whatever reasons or motives may have influenced these men to change their views and statements, it would certainly be unwise for the general public to adopt these new political beliefs without being fully convinced that they are based on truth and sound policy.

I have often been pleased to observe that independent America was not composed of scattered and far-off territories, but that our sons of liberty inherited one connected, fertile, and expansive country. Providence has especially blessed it with a diversity of soils and products, and has given it countless streams to serve and delight its inhabitants. A series of navigable waters forms a sort of chain along its borders, as if to bind it together; meanwhile, the world’s most splendid rivers, flowing conveniently apart, provide easy transportation for friendly assistance and the exchange and movement of various goods.

With equal pleasure, I’ve also often noticed that Providence has been pleased to give this single, unified country to one united people—a people descended from the same ancestors, speaking the same language, professing the same religion, sharing the same political principles, highly similar in customs and way of life, and who, through their shared advice, arms, and effort, side by side through a long and bloody war, have valiantly secured our liberty and independence.

This country and these people seem made for each other, and it seems as though Providence meant for such a fitting and convenient inheritance to go to a band of brothers, joined by the strongest ties, never to be broken into a number of unfriendly, jealous, and foreign sovereignties.

Such feelings have, until now, prevailed among all orders and groups of people here. For all general purposes, we have consistently been one people, with each citizen everywhere enjoying the same national rights, privileges, and protections. As a nation, we have made peace and war; together, we have defeated our common enemies; as a nation, we have formed alliances, made treaties, and entered into many agreements and conventions with foreign states.

A strong appreciation for the benefits of union led the people, from an early time, to establish a federal government to maintain and perpetuate that union. They created it almost as soon as they had their own political existence; even at a time when their homes were burning, when many citizens were wounded or dying, and during a period when the destruction and hostility offered little opportunity for the thoughtful inquiry and reflection that must come before forming a wise and balanced government for a free people. It’s not surprising, then, that a government created under such unfavorable conditions should, when tested, turn out to be seriously lacking and inadequate for its intended purpose.

This aware people recognized and regretted these flaws. Remaining just as attached to union as they were to liberty, they realized the immediate danger threatening the former and, eventually, the latter as well. Convinced that secure protection for both could only be found in a better-framed national government, they, with one voice, called the recent convention in Philadelphia to address that important subject.

That convention, made up of men who had the people’s trust—and many of whom had earned distinction for their patriotism, virtue, and wisdom during times that tested both mind and heart—undertook this difficult task. In a peaceful season, free from distractions, they spent many months in calm, uninterrupted, daily discussions and finally, acting from no motive but love of country, they presented and recommended to the people the plan produced by their joint and nearly unanimous efforts.

Admit, as is true, that this plan is only RECOMMENDED, not forced, yet remember that it is not presented for BLIND approval or BLIND rejection, but for that thoughtful and honest consideration which the seriousness and importance of the issue require, and which it surely should receive. But this (as was noted in the previous paper) is more to be hoped for than expected. Experience teaches us not to be overly optimistic. It has not been forgotten that strong fears of imminent danger led the people of America to form the historic Congress of 1774. That group recommended certain measures to their people, and events proved their wisdom. Still, we clearly remember how quickly writers began publishing pamphlets and weekly papers against those very measures. Not only many government officials, acting from self-interest, but also others—misjudging the consequences, influenced by old loyalties, or moved by ambitions opposed to the public good—worked tirelessly to persuade the people to reject the patriotic Congress’s advice. Many were deceived and misled, but the great majority of people reasoned and decided wisely, and they are happy now to reflect that they did.

They believed that Congress was made up of many wise and experienced individuals. Coming from different parts of the country, they brought and shared a variety of useful information with each other. During the time they spent together investigating and discussing the true interests of their country, they likely gained very accurate knowledge on the subject. Since they were personally invested in the country’s liberty and prosperity, it was not only their responsibility but also their preference to recommend only those measures which, after the most careful thought, they genuinely considered wise and advisable.

These and similar reasons led the people to rely heavily on the judgment and integrity of Congress; and they accepted its advice, despite the various tactics and efforts used to turn them away from it. But if the general public had reason to trust the members of that Congress—most of whom had not yet been fully tested or widely known—they have even greater reason now to respect the judgment and advice of the Convention. It is well known that some of the most distinguished members of that earlier Congress, who have since been tried and rightfully recognized for their patriotism and abilities, and who have gained even more political knowledge over the years, were also members of this Convention, and brought their accumulated experience with them.

It is worth noting that not only the first Congress, but every Congress since and the recent Convention as well, have always agreed with the people in believing that America’s prosperity depends on its Union. Preserving and continuing that Union was the main goal of the people in forming the Convention, and it is also the main objective of the plan that the Convention has proposed they adopt. So with what logic, or for what purpose, are some people now trying to downplay the importance of Union? Why suggest that dividing into three or four confederacies would be better than remaining as one? I am personally convinced that the people have always been right on this point, and that their widespread and unchanging support for Union rests on strong and meaningful reasons, which I will try to clarify and explain in later papers. Those who promote the idea of several separate confederacies instead of the Convention’s plan seem quite aware that rejecting it would put the continuation of the Union in serious danger. That would certainly be the case, and I sincerely hope every good citizen can also clearly see that, if the Union is ever broken up, America will have reason to say, in the words of the poet: “FAREWELL! A LONG FAREWELL TO ALL MY GREATNESS.”

PUBLIUS

## FEDERALIST No. 3. The Same Subject Continued (Concerning Dangers From Foreign Force and Influence)

### For the Independent Journal. Saturday, November 3, 1787

JAY

To the People of the State of New York:

It is not new to observe that the people of any country (if, like the Americans, they are intelligent and well informed) rarely adopt and steadfastly keep, for many years, opinions that are actually wrong regarding their own interests. That fact naturally increases respect for the strong belief which Americans have long and consistently held about the importance of remaining united under one federal government, with enough power to serve all general and national needs.

The more carefully I think through and examine the reasons behind this belief, the more certain I am that those reasons are strong and convincing.

Among the many priorities a wise and free people must address, providing for their SAFETY is the first. The SAFETY of the people clearly depends on a wide variety of circumstances and considerations, which gives great flexibility for anyone who wants to define it fully and precisely.

For now, I intend only to look at safety as it relates to keeping peace and order, as well as protecting against dangers from FOREIGN ARMS AND INFLUENCE, and from similar dangers that may arise at home. Since the former comes first in order, it is proper that it be discussed first. Let’s therefore go on to consider whether the people are right in believing that a strong Union, under an effective national government, offers them the best protection against HOSTILITIES from abroad.

The number of wars that have happened or will happen in the world will always relate to the number and seriousness of the causes—whether REAL or PRETENDED—that PROVOKE or INVITE them. If that is true, it is useful to ask whether UNITED AMERICA is as likely to provide so many JUST causes for war as a DISUNITED America; for if it turns out that a United America is less likely to create such causes, it follows that the Union does the most to keep the people at peace with other nations.

Most JUST causes of war come from breaking treaties or direct violence. America has already made treaties with at least six foreign countries, and all of them, except Prussia, are sea powers and therefore able to threaten and harm us. America also maintains significant trade with Portugal, Spain, and Britain, and, regarding the last two, must also consider their close proximity.

It is very important to America’s peace that she follow the law of nations with all these countries. It seems obvious to me that this will be done more perfectly and consistently by one national government than by thirteen separate States or three or four different confederacies.

Because, once an effective national government is set up, the best people in the country will be not only willing to serve, but also generally chosen to manage it. While local influence might get people into State assemblies, senates, or courts, or other executive roles, broader and better-known reputations for talent and other qualifications will be necessary to recommend people for national office—especially since the national government has a much wider pool to choose from, and will never face the lack of suitable candidates that sometimes happens in certain States. Therefore, the national government’s administration, political advice, and court decisions will be more wise, systematic, and sound than those of individual States, and so will be more satisfactory to other nations and also SAFER for us.

Because, under the national government, treaties and the laws of nations will always be interpreted in the same way and applied equally—whereas, decisions about the same issues in thirteen States or several confederacies will not always be consistent, due both to having multiple independent courts and judges and to the differences in local laws and interests that may influence them. The wisdom of the Convention in giving such matters to courts chosen by and accountable only to a single national government cannot be praised enough.

Because, the possibility of immediate loss or advantage may often tempt the leaders in one or two States to depart from honesty and justice; but those temptations don’t extend to the other States and therefore have little or no effect on the national government—the temptation will fail, and good faith and justice will be maintained. The situation regarding the treaty of peace with Britain adds significant support to this argument.

Because, even if the leaders in one State want to resist such temptations, since temptations often do come from circumstances unique to that State and may affect many of its people, those leaders might not always be able, even if willing, to prevent the injustice, or to punish the offenders. But the national government, not influenced by those local issues, will neither be inclined to commit the wrongdoing themselves nor lack the ability or desire to prevent or punish others for it.

Therefore, regarding intentional or accidental violations of treaties and the laws of nations—the main JUST causes for war—such risks are lower under one general government than several smaller ones. In this respect, the former does the most to guarantee the SAFETY of the people.

As for those just causes of war that come from direct and unlawful violence, it seems equally clear to me that a strong national government provides far more security against such dangers than any other alternative.

These acts of violence are more often caused by the passions and interests of a part, rather than the whole; by one or two States, rather than by the Union as a whole. Not a single Indian war has yet been started by aggressions from the current federal government, weak as it may be; but there are several instances of Indian hostilities that were provoked by the improper actions of individual States. These States, either unable or unwilling to restrain or punish offenses, have in some cases given rise to the slaughter of many innocent people.

The fact that Spanish and British territories border some States but not others naturally limits the causes of quarrel more directly to the bordering States. These neighboring States, if any, will be the ones who, driven by sudden irritation and a quick sense of apparent interest or injury, are most likely to incite wars with these nations through direct violence. Nothing could more effectively prevent such danger as a national government, whose wisdom and prudence won't be weakened by the passions affecting those immediately involved.

Not only will a national government present fewer just causes for war, but it will also be better able to resolve and settle such issues peacefully. The national government will act more calmly and reasonably, and in this way—among others—will be more capable of acting wisely than the offending State. The pride of States, just like that of individuals, naturally leads them to justify all their actions and resist admitting, correcting, or repairing their errors and offenses. In such cases, the national government won't be affected by this pride, but will instead proceed with moderation and openness to consider and decide on the best ways to free them from the difficulties they face.

Moreover, it is well known that apologies, explanations, and compensation are often accepted as satisfactory when offered by a strong, united nation—offers that would likely be rejected if made by a State or a weak confederacy.

For example, in 1685, the state of Genoa having offended Louis XIV, tried to appease him. He demanded that they send their Doge, or chief magistrate, along with four of their senators, to France to ask his pardon and accept his terms. They had no choice but to comply for the sake of peace. Can anyone imagine him ever demanding, or receiving, such a humiliation from Spain, Britain, or any other powerful nation?

PUBLIUS

## FEDERALIST No. 4. The Same Subject Continued (Concerning Dangers From Foreign Force and Influence)

### For the Independent Journal. Wednesday, November 7, 1787

JAY

To the People of the State of New York:

In my last paper, I gave several reasons why the safety of the people would best be secured by union, protecting them against dangers that may arise from just causes of war given to other nations. Those reasons show that such causes would not only happen less often, but would also be more easily resolved by a national government than by State governments or a small group of confederacies.

But the safety of the American people from dangers brought by foreign powers depends not only on their being careful not to give just causes of war to other nations, but also on putting themselves—and keeping themselves—in such a position that they do not invite hostility or insult. It should also be noted that there are false, or pretended, as well as just, causes of war.

It is, sadly, too true—however shameful it may be—that nations will generally make war whenever they see an opportunity to gain from it. In fact, absolute monarchs will often make war even when their countries stand to gain nothing, simply for personal reasons like a desire for military glory, revenge for personal slights, ambition, or private deals to strengthen their own families or supporters. These and many other motives, which matter only to the sovereign himself, often prompt rulers to engage in wars not justified by justice or by the true interests of their people. Beyond these causes—common in absolute monarchies and certainly worth our attention—there are also causes that can affect both nations and kings, and some of these stem from our particular situation and circumstances.

We compete with France and Britain in the fisheries and can supply their markets more cheaply than they can, despite any bounties or tariffs they use to protect their own fisheries.

Likewise, with them and with most other European nations, we are rivals in shipping and trade. We should not fool ourselves into thinking that any of them will be happy to see our trade succeed; since our increase in trade will inevitably reduce theirs, it is more in their interest—and will be their policy—to restrain ours, not encourage it.

In trading with China and India, we interfere with more than one nation because it allows us to share in advantages they had nearly monopolized, and because we now buy goods for ourselves that we used to purchase from them.

The growth of our own commerce on our own ships cannot please nations that have territories on or near this continent. The quality and low cost of our products—combined with our proximity and the energy and skill of our merchants and navigators—will give us a larger share of the benefits those territories offer than their rulers would like.

Spain finds it useful to close the Mississippi River to us on the one side, and Britain keeps us out of the Saint Lawrence on the other; nor will either allow the other waters lying between the two to become channels of trade and communication.

From these and similar reasons—which could be further explained if it were prudent to do so—it is clear that jealousy and anxiety may slowly take root in the minds and councils of other nations. We cannot expect them to regard our progress in unity, power, and influence on land and sea with indifference or calm.

The people of America recognize that reasons for war may arise from these circumstances, as well as from others that may not seem obvious at the moment, and that whenever such reasons find the right time and opportunity, pretenses to justify them will certainly not be lacking. Therefore, they wisely believe that union and a strong national government are necessary to place and keep them in SUCH A SITUATION as, instead of INVITING war, will work to prevent and discourage it. That situation is the best possible state of defense, which necessarily depends on the government, the military, and the resources of the country.

Since the safety of all is the concern of all, and cannot be secured without some form of government—be it one, several, or many—let us consider whether a single good government is not, for our purpose here, more capable than any number of others.

A single government can gather and use the talents and experience of the most capable people, wherever they may be in the Union. It can operate on steady, uniform policy principles. It can harmonize, unite, and protect the different parts and members, and extend the advantage of its foresight and precautions to each. In making treaties, it will consider the interests of the whole, with those of the parts as they relate to the whole. It can allocate the resources and power of the entire nation to defend any particular part, more easily and quickly than State governments or separate confederacies could, due to their lack of coordination and unity. It can organize the militia under one system of discipline, and, by putting officers in a proper chain of command under the Chief Executive, can, in effect, turn them into a unified force, making them far more effective than if they were divided into thirteen or three or four separate, independent companies.

What would the militia in Britain be like if the English militia obeyed England’s government, the Scottish militia Scotland’s, and the Welsh militia Wales’s? Suppose there was an invasion; could those three governments (if they even agreed) use all their forces together as effectively against the enemy as a single government of Great Britain could?

We have often heard about the fleets of Britain, and if we are wise, the day may come when the fleets of America command similar attention. But if a single national government had not managed British navigation so as to make it a training ground for seamen—if it had not gathered all the nation’s resources and materials for building fleets—its power and achievements would never have become legendary. Let England have its own ships and fleet—Scotland its own—Wales its own—Ireland its own—let these four parts of the British empire each be under separate governments, and it is easy to see how quickly each would shrink in significance.

Apply these facts to our situation. If America remains divided into thirteen or, if you wish, three or four independent governments—what armies could each raise or fund—what fleets could they ever hope to possess? If one were attacked, would the others rush to help, sacrificing their blood and money in its defense? Wouldn’t there be a real risk that they could be lulled into neutrality by persuasive promises, or that a strong desire for peace would lead them to avoid risks, even if it meant ignoring the troubles of neighbors, for whom they might feel jealousy, and whose importance they wouldn't mind seeing lessened? Although such behavior would not be wise, it would still be natural. The history of Greece and other nations is full of such examples, and it is likely that, given similar circumstances, it would happen again.

But let’s suppose they would actually want to help the state or confederacy under attack. How, when, and in what ratio would help in men and money be provided? Who would command the allied armies, and who would give him orders? Who would negotiate peace terms, and if there were disagreements, what judge would settle the disputes and enforce the decisions? Many difficulties and inconveniences would be unavoidable in such a situation; however, one government overseeing the general interests, combining and directing the power and resources of all, would avoid these problems and do much more for the people’s safety.

But whatever our circumstances—whether firmly united under one national government or split into multiple confederacies—it is certain that foreign nations will know our situation exactly as it is, and will treat us accordingly. If they see our national government is effective and well managed, our trade is wisely regulated, our militia well organized and trained, our resources and finances carefully handled, our credit restored, and our people free, satisfied, and united, they will be much more likely to seek our friendship than risk provoking our anger. If, on the other hand, we are seen as lacking an effective government (each State acting as it pleases), or divided into three or four independent and probably quarreling republics or confederacies—one leaning toward Britain, another toward France, a third toward Spain, and each possibly played against the others by foreign powers—America will appear weak and contemptible to them! We would soon be vulnerable not only to their scorn, but also their aggression, and costly experience would quickly teach that when people or families split apart, their division always works against their own interests.

PUBLIUS

## FEDERALIST No. 5. The Same Subject Continued (Concerning Dangers From Foreign Force and Influence)

### For the Independent Journal. Saturday, November 10, 1787

JAY

To the People of the State of New York:

Queen Anne, in her letter of July 1, 1706, to the Scottish Parliament, offers some thoughts on the importance of the UNION then being negotiated between England and Scotland, which are worth our attention. I'll share one or two excerpts: “An entire and perfect union will be the solid foundation of lasting peace: It will secure your religion, liberty, and property; remove the animosities among yourselves, and the jealousies and differences between our two kingdoms. It must increase your strength, wealth, and trade; and by this union the whole island, being united in affection and free from fears of separate interests, will be ENABLED TO RESIST ALL ITS ENEMIES.” “We most earnestly recommend to you calmness and unity in this important and serious matter, so that the union may be happily concluded, being the only EFFECTIVE way to secure our present and future happiness, and to thwart the plans of our enemies, who will certainly USE THEIR UTMOST EFFORTS TO PREVENT OR DELAY THIS UNION.”

It was mentioned in the previous paper that weakness and divisions at home invite dangers from abroad, and that nothing will do more to secure us from them than unity, strength, and good government among ourselves. This is a large topic and cannot be easily exhausted.

The history of Great Britain is probably the one we know best, and it offers many valuable lessons. We can learn from their experience without paying the same price for it. Although it may seem obvious that the people of such an island should be a single nation, we find that for centuries they were divided into three, and that these three were almost constantly involved in conflicts and wars with each other. Even though their real interest regarding the nations of the continent was the same, the tactics, policies, and influence of those nations kept their mutual suspicions constantly inflamed, making them far more troublesome to each other than helpful for many years.

If the people of America were to divide themselves into three or four nations, wouldn’t the same thing happen? Wouldn’t similar jealousies arise and be nurtured in the same way? Instead of being “joined in affection” and free from fear of differing “interests,” envy and suspicion would soon destroy confidence and good will, and the specific interests of each confederacy, rather than the interests of all America together, would become the only focus of their policy and actions. Thus, like most other BORDERING nations, they would always be either involved in conflict and war, or living in constant fear of them.

Even the most enthusiastic supporters of forming three or four confederacies cannot reasonably think that these would stay perfectly equal in strength for long—even if that were possible to arrange at first; but, even admitting it could be done, what human plan could guarantee such equality would last? Beyond the local differences that cause power to grow in one region and slow it in another, we should also consider the impact of more effective policy and management, which would likely make the government of one confederacy superior to the rest, upsetting their initial equality in strength and status. It's unrealistic to expect that every confederacy would consistently practice the same degree of sound policy, prudence, and foresight for many years in a row.

Whenever and for whatever reason it occurs, and it certainly would, that one of these nations or confederacies rises above the others in political significance, its neighbors would immediately view it with envy and fear. Those feelings would make them support, if not encourage, anything that might reduce its importance, and also prevent them from taking actions that might promote or even secure that confederacy’s prosperity. It wouldn't take long for such feelings to be noticed. Distrust would quickly grow on all sides. Nothing transforms goodwill and decent behavior into suspicion and hostility faster than bitterness and unfair accusations, whether spoken or merely implied.

The North is generally the area of greatest strength, and many local circumstances suggest it’s likely that the most Northern of the proposed confederacies would, before long, be unquestionably the most powerful. As soon as this became clear, the NORTHERN HIVE would create the same fears and emotions in the more southern parts of America as it once did in the southern parts of Europe. Nor does it seem unreasonable to suspect that its “young swarms” might be tempted to gather “honey” from the richer lands and warmer climate of their wealthier and more refined neighbors.

They who thoughtfully consider the history of similar divisions and confederacies will find many reasons to fear that those under discussion would be neighbors only in the sense of being borderers. They would neither trust nor care for one another. On the contrary, they would be dragged into discord, jealousy, and mutual harm—in short, they would put us exactly in the position where some nations certainly want to see us: DANGEROUS ONLY TO EACH OTHER.

From these reflections, it seems clear that those gentlemen are quite mistaken who believe that offensive and defensive alliances could be formed between these confederacies, and that such alliances would create the combination and unity of intentions, military strength, and resources needed to keep them formidable against foreign enemies.

When did the independent states into which Britain and Spain were once divided ever combine in such alliances or unite their strength against a foreign enemy? The proposed confederacies will be SEPARATE NATIONS. Each would manage its own commerce with foreign countries through distinct treaties; and since their products and trading goods differ, and suit different markets, those treaties would differ greatly as well. Different commercial interests inevitably lead to different political attachments and connections with various foreign nations. Therefore, it could easily happen that the foreign nation at war with the SOUTHERN confederacy may be the one with whom the NORTHERN confederacy is most eager to keep peace and friendship. An alliance so opposed to their immediate interests would therefore not be easy to form, nor, if formed, would it be kept with perfect honesty.

Indeed, it is much more likely that in America, as in Europe, neighboring nations, guided by clashing interests and unfriendly passions, would often take different sides. Considering our distance from Europe, it would be more natural for these confederacies to fear one another’s power than worry about distant nations, and so each would be more eager to guard against the others with foreign alliances, rather than band together against foreign danger. And let us not forget how much easier it is to welcome foreign fleets into our ports, and foreign armies into our country, than to persuade or force them to leave. How many times did the Romans and others conquer lands as "allies," and how many changes did they introduce into the governments of those they claimed to protect.

Let fair-minded people judge for themselves whether dividing America into any number of independent sovereignties would better secure us from the hostility and undue interference of foreign nations.

PUBLIUS

## FEDERALIST No. 6. Concerning Dangers from Dissensions Between the States

### For the Independent Journal. Wednesday, November 14, 1787

HAMILTON

To the People of the State of New York:

The last three numbers of this paper have focused on listing the dangers we would face, in a state of disunion, from the military and political moves of foreign nations. I now turn to a different, and perhaps even more alarming, type of danger—those very likely to result from arguments and conflicts among the States themselves, from internal factions and upheavals. Some of these have already been briefly mentioned, but they deserve a more detailed and thorough examination.

A person would have to be deeply lost in idealistic theories to seriously believe that, if these States should either break apart completely or unite only loosely, the divisions that might arise would not frequently and fiercely argue and fight with each other. To imagine there would be no motive for such conflicts as proof that they would not happen is to forget that people are ambitious, vengeful, and greedy. Expecting continuous harmony among a group of independent, unconnected sovereign states in the same region is to ignore the entire history of humanity, and to challenge the common experience of the ages.

The reasons for conflict among nations are countless. There are some that affect whole societies almost constantly—such as the love of power or the desire for dominance; the jealousy of power, or the wish for equality and security. Others have a more limited, but still powerful, effect within their own scope—like the rivalries and trading conflicts between commercial nations. Then there are others, just as numerous, which come entirely from personal passions—the likes, dislikes, interests, ambitions, and fears of leading individuals in their respective communities. People in this position—whether favorites of a king or a people—have too often abused the trust given to them; and, pretending to some public reason, have not hesitated to sacrifice national peace for their personal benefit or satisfaction.

The famous Pericles, swayed by the anger of a prostitute,(1) spent much of his fellow citizens’ blood and money to attack, defeat, and destroy the city of the SAMMIANS. The same man, driven by personal resentment against the MEGARENSIANS,(2) or perhaps to avoid prosecution as an accomplice in the supposed theft by the sculptor Phidias,(3) or to escape accusations of misusing state funds for popularity,(4) or by a mix of all these reasons, was the original cause of that well-known and disastrous conflict—that PELOPONNESIAN war—which, after many ups and downs, pauses, and restarts, ended in the destruction of the Athenian commonwealth.

The ambitious cardinal who served as prime minister to Henry VIII, allowed his vanity to reach for the papal crown,(5) hoping to win that honorable reward with the help of Emperor Charles V. To gain the approval and support of this powerful monarch, he pushed England into a war with France, against all sound political judgment and risking not just England’s safety and independence, but the security of Europe as a whole. For if any ruler ever came close to establishing universal monarchy, it was Emperor Charles V, for whom Wolsey was both a tool and a victim.

The effects that the religious fanaticism of one woman,(6) the unpredictability of another,(7) and the scheming of a third,(8) had on European politics, unrest, and peace in their own era have been so often discussed as to be well known.

To give more examples of the impact of personal interests on major national events, whether foreign or domestic, would be a needless waste of time. Even those with only a basic knowledge of history will remember many such cases; and those who know human nature reasonably well do not need extra evidence to judge how real and extensive this influence is. Perhaps, however, as a recent illustration supporting the larger point, it is appropriate to refer to a case that has just happened among ourselves: If Shays had not been a DESPERATE DEBTOR, Massachusetts very likely would not have been pulled into civil war.

Yet, despite all this clear experience, some idealists or schemers are still ready to insist on the fantasy of permanent peace between the States, even if separated and estranged from one another. They claim that the spirit of republics is peaceful; that trading tends to soften people’s ways and die down the angry feelings that often cause wars. That commercial republics like ours will never waste themselves in destructive conflicts with each other. They say mutual interest will guide them, and foster a spirit of friendship and harmony.

But isn’t it, we might ask these political dreamers, truly in the interest of all nations to cultivate this benevolent and philosophical spirit? If so, have they ever actually followed it? Hasn’t it always been the case that momentary passions and immediate interests have a stronger and more decisive pull on human action than remote or theoretical concerns of policy, usefulness, or justice? Have republics really been less warlike than monarchies? Aren’t republics run by MEN just like monarchies? Don’t they, as nations, have dislikes, loyalties, rivalries, and desires for unjust gain, just as kings do? Aren’t their popular assemblies often controlled by anger, revenge, jealousy, greed, and other wild or violent tendencies? Isn’t it well known that a few trusted individuals often sway their decisions, leading to those decisions being colored by the moods and interests of those few? Has trade ever done more than just shift the objects of war? Isn’t the love of wealth just as dominating and aggressive a motive as the love of power or glory? Haven’t there been just as many wars motivated by commerce since it became the main concern of nations, as there were before, when wars were fought over land or control? Hasn’t the growth of commerce often given new motives for both territorial and commercial wars? Let experience—the surest guide of opinion—be called on for answers to these questions.

Sparta, Athens, Rome, and Carthage were all republics; of them, Athens and Carthage were trading powers. Yet they were just as often involved in wars, whether attacking or defending, as the monarchies of the same era. Sparta was little more than a highly organized military camp, and Rome was never satisfied without bloodshed and conquest.

Carthage, though a commercial republic, was the aggressor in the very war that led to her destruction. Hannibal brought Carthage’s forces into the heart of Italy and to the gates of Rome before Scipio, in turn, defeated him on Carthaginian soil and conquered the commonwealth.

Venice, in later times, repeatedly engaged in wars of ambition until, becoming a target for the other Italian states, Pope Julius II. found a way to form that formidable league,(9) which delivered a fatal blow to the power and pride of this proud republic.

The provinces of Holland, until they were overwhelmed by debt and taxes, played a prominent and leading role in the wars of Europe. They fought fierce battles with England for control of the sea and were among the most persistent and implacable opponents of Louis XIV.

In the government of Britain, the representatives of the people form one branch of the national legislature. Commerce has been the dominant pursuit of that country for centuries. Yet few nations have gone to war more often; and the wars in which that kingdom has been involved have, in many cases, originated with the people themselves.

There have been, if I may say so, nearly as many popular wars as royal ones. The outcries of the nation and the urgings of their representatives have at times dragged their monarchs into wars, or kept them there, against their wishes, and sometimes against the true interests of the state. In that famous struggle for supremacy between the rival houses of AUSTRIA and BOURBON, which kept Europe in turmoil for so long, it is well known that the English people’s hostility toward the French, supporting the ambition—or rather, the greed—of a favored leader,(10) prolonged the war well beyond what good policy would have allowed, and for a long period, in opposition to the government’s wishes.

The wars of these two last-mentioned nations largely arose from commercial interests—the desire to surpass or the fear of being surpassed in certain branches of trade or in the general benefits of commerce and navigation, and at times the even more blameworthy desire to share in the commerce of other nations without their consent.

The recent war between Britain and Spain began because British merchants tried to pursue an illegal trade with the Spanish colonies. These unjustifiable actions on their part led the Spaniards to treat British subjects harshly—actions that were no more justifiable, as they went beyond reasonable retaliation and could be called inhumane and cruel. Many English captured on the Spanish coast were sent to dig in the mines of Potosi; and, through the usual growth of resentment, the innocent were eventually punished alongside the guilty without distinction. The merchants’ complaints sparked nationwide outrage, which soon flared in the House of Commons and spread from there to the ministry. Letters of reprisal were issued, and war followed, which, as a consequence, shattered all the alliances that had been optimistically formed only twenty years before.

Considering the experiences of other countries similar to our own, what reason do we have to trust in the fantasies that would mislead us into expecting peace and unity among the members of the present confederacy if separated? Haven’t we already seen enough of the falsehood and absurdity of those idle theories that promised we could avoid the flaws, weaknesses, and problems that come with society in any form? Is it not time to wake from the deceptive dream of a golden age, and to accept as a practical lesson for our political decisions that we, like the rest of humanity, are still far from the ideal world of perfect wisdom and perfect virtue?

Let the depths to which our national dignity and credit have sunk, the inconveniences felt everywhere from weak and mismanaged government, the revolt of a part of North Carolina, the recent threats of unrest in Pennsylvania, and the current insurrections and rebellions in Massachusetts, speak for themselves—!

The general sense of humanity is far removed from the views of those who try to lull us into ignoring the chances of discord and conflict between the States, should we separate. Instead, long observation of society’s progress has made it almost an axiom in politics that nations which are neighbors are natural enemies. An insightful writer puts it this way: “NEIGHBORING NATIONS (says he) are naturally enemies of each other unless their common weakness forces them to league in a CONFEDERATE REPUBLIC, and their constitution prevents the differences that neighborhood occasions, extinguishing that secret jealousy which disposes all states to aggrandize themselves at the expense of their neighbors.”(11) This passage not only identifies the EVIL but also suggests the REMEDY.

PUBLIUS

1\. Aspasia, see “Plutarch’s Life of Pericles.”

2\. Ibid.

3\. Ibid.

4\. Ibid. Phidias was believed to have stolen some public gold, with Pericles’s knowledge, to embellish the statue of Minerva.

5\. Worn by the popes.

6\. Madame de Maintenon.

7\. Duchess of Marlborough.

8\. Madame de Pompadour.

9\. The League of Cambray, including the Emperor, the King of France, the King of Aragon, and most of the Italian princes and states.

10. The Duke of Marlborough.

11. See “Principes des Negociations” by Abbé de Mably.

## FEDERALIST No. 7. The Same Subject Continued (Concerning Dangers from Dissensions Between the States)

### For the Independent Journal. Thursday, November 15, 1787

HAMILTON

To the People of the State of New York:

It is sometimes asked, often with a sense of confidence, what possible reasons the States would have, if separated, to wage war against each other? A complete answer to this is—exactly the same reasons that have, at various times, caused almost every nation in the world to be bathed in blood. Sadly, for us, the question can be answered even more specifically. There are particular causes for disputes that we can easily foresee, and even though we have lived under the constraints of a federal Constitution, we have already seen enough to judge what could happen if those restraints were removed.

Territorial disputes have always been among the most common sources of conflict between nations. Perhaps the majority of wars that have ravaged the earth have started for this reason. This motive would apply just as strongly to us. There is a large tract of unsettled land within the United States’ borders. There remain unsettled and conflicting claims among several States. The breakup of the Union would create opportunities for similar claims to arise between them all. It is well known that the States have in the past engaged in serious and animated debates over the rights to lands ungranted at the time of the Revolution, commonly referred to as crown lands. The States within whose colonial boundaries these lands lay have claimed them as their own, while other States have argued that the rights of the crown in this area transferred to the Union—especially concerning all Western territories that, whether by occupation or by submission of the Indian owners, were under the jurisdiction of the British crown until relinquished in the peace treaty. Some have said that, in any case, this land was gained for the Confederacy by agreement with a foreign power. Congress has wisely sought to quell this argument by persuading States to cede their claims to the United States for the common good. This effort has so far succeeded enough, with the continuation of the Union, to give hope of an eventual peaceful solution. If the Confederacy were broken apart, however, this dispute would come back, along with new ones of the same kind. Currently, much of the Western territory is, at least by cession if not by original right, the joint property of the Union. If this ended, the States that ceded land, as part of a federal compromise, might, once the motivation for the grant vanished, try to reclaim the lands as a reversion. The other States would definitely demand a share, based on representation. Their case would be that a grant, once made, cannot be revoked, and that it would still be just to share territory gained or secured by the combined effort of the Confederacy. Even if, against expectation, all States agreed that each was entitled to a share of this joint asset, a new problem would arise: how to fairly divide it. Each State would propose its own rules for dividing the land, according to its own interests—leading to conflict that would not likely be easily resolved.

So, in the expanse of Western territory, we have a perfect setting for hostile claims, with no impartial judge to mediate rivalries. If we judge the future by the past, we have every reason to fear that disputes would sometimes be settled by the sword. The circumstances surrounding the dispute between Connecticut and Pennsylvania over Wyoming warn us not to expect a peaceful settlement of such differences. The Articles of Confederation required the parties to submit the case to a federal court. They did so, and the court ruled in favor of Pennsylvania. But Connecticut showed clear signs of resentment at the decision, and did not seem fully reconciled until, through negotiation and maneuvering, she received a form of compensation she considered acceptable. None of this is meant to criticize Connecticut’s conduct. She likely genuinely believed the decision was unjust; and, like individuals, States accept judgments against them only with great reluctance.

Those who witnessed the internal details of the controversy between this State and the district of Vermont can confirm the resistance we faced not only from States directly interested but also from those not directly involved. They can also attest to the danger the Confederacy's peace might have faced had this State tried to assert its rights by force. Two main motives fueled this opposition: first, a fear of our future power, and second, the self-interest of certain influential people in neighboring States who had acquired land grants under Vermont’s existing government. Even the States that asserted claims against ours seemed more interested in dividing our State than advancing their own cases. These included New Hampshire, Massachusetts, and Connecticut. New Jersey and Rhode Island consistently supported Vermont's independence; Maryland, until worried by a possible alliance between Vermont and Canada, was also deeply involved. These smaller States resented the prospect of our increasing strength. Reviewing these events shows some of the causes likely to draw the States into conflict with one another should they become disunited.

Commercial competition would be another major cause of quarrel. States less favored geographically would want to avoid the disadvantages and share in their more fortunate neighbors' advantages. Each State or confederacy would set its own trade policies. This would create distinctions, preferences, and exclusions, leading to discontent. The familiar habits of equal trade we have known since colonial times would make these grievances even sharper. WE WOULD BE QUICK TO CALL INJURIES THOSE THINGS WHICH, IN FACT, WOULD BE THE RIGHTFUL ACTS OF INDEPENDENT SOVEREIGNTIES EACH PURSUING ITS OWN INTEREST. The energetic spirit that drives American commerce has never missed a chance to manifest itself. It is unlikely this bold energy would show much respect for the trade regulations by which certain States tried to secure exclusive advantages for their own people. Violations of these rules by one side, and attempts to prevent or punish such violations by the other, would naturally cause mayhem, reprisals, and war.

Some States would have the opportunity to make others pay tribute through commercial regulations, which those required to pay would not tolerate for long. Take the relationship between New York, Connecticut, and New Jersey as an example. New York, needing revenue, would impose duties on her imports. Much of these duties would, in effect, be paid by residents of the other two States, as they buy those imported goods. New York would not want, nor could she afford, to give up this benefit. Her own residents would not agree to pay a duty that was waived for out-of-State customers; nor, even without that obstacle, would it be easy to tell one customer from another in our markets. Would Connecticut and New Jersey quietly accept being taxed by New York for her exclusive advantage? Could we enjoy in peace the benefits of a metropolis, the possession of which gives us a gain our neighbors find intolerable and unjust? Could we hold it in the face of pressure from Connecticut on one side, and the active cooperation of New Jersey on the other? Only recklessness would answer “yes” to these questions.

The national debt would be yet another cause for conflict between States or confederacies. Deciding how to divide the debt initially, and then reduce it over time, would arouse irritation and hostility. How could any rule for dividing it please everyone? Nearly every approach has its flaws. As usual, these would be magnified by the competing interests of the parties. The States even have different views on the basic principle of paying down the public debt. Some, either less concerned about national credit or with few citizens directly invested, are indifferent or even opposed to paying the domestic debt promptly. These would emphasize the difficulties of distribution. Others, whose citizens are owed much of the public debt, would insist on a fair and effective solution. Delays from the former would anger the latter. Genuine disagreement and intentional stalling would postpone settling on a rule. Citizens would protest; foreign powers would demand satisfaction of their claims; and the States’ peace would be threatened by the dual risks of outside attack and internal strife.

Even if the States managed to agree on a rule and made an apportionment, there is every reason to believe the rule, once put into practice, would burden some States more than others. Those harmed would naturally want their load reduced. Others would just as naturally resist any changes likely to add to their own burdens. Such refusal would give the aggrieved States a plausible excuse to withhold their payments, a temptation too great to resist; and this failure to meet obligations would be sure to cause bitterness and arguments. Even if the rule proved fair in practice, failures in payment would arise from many sources: lack of resources, mismanaged finances, government disorder, and, above all, the natural reluctance of people to part with money for purposes no longer urgent, especially when such payments compete with current needs. Delinquencies, whatever their cause, would spark complaints and disputes. There is perhaps no issue more likely to upset the peace of nations than shared financial obligations for a common purpose that does not benefit every contributor equally. As the saying goes, there is nothing men argue over as quickly as money.

Laws that violate private contracts, since they infringe on the rights of States whose citizens are harmed, could also lead to hostility. We have no reason to expect that the States, if left unchecked, would act more fairly or generously in the future than they have in many regrettable past cases. We remember how Connecticut was provoked to retaliation by the extreme measures adopted by Rhode Island’s legislature; it is a reasonable conclusion that, in similar future situations, it would be not a “war of paper,” but a war of the sword that would punish such outrageous breaches of moral and social justice.

The likelihood of incompatible alliances between various States or confederacies and different foreign powers, and the impact on the peace of all, have been explained earlier in these essays. From what they have shown, the conclusion is clear: if America were not united, or only connected by a weak league for joint defense, conflicting alliances would slowly draw her into all the tangled intrigues of European politics and conflicts. The resulting strife among her parts would make her the victim of the schemes and manipulations of powers hostile to all Americans. Divide et impera(1)—divide and rule—would surely be the motto of every nation that either hates or fears us.(2)

PUBLIUS

1. Divide and command.

2. To make sure the entire series of these essays is published as quickly as possible, it is planned to publish them four times a week—on Tuesday in the New York Packet and on Thursday in the Daily Advertiser.

## FEDERALIST No. 8. The Consequences of Hostilities Between the States

### From the New York Packet. Tuesday, November 20, 1787.

HAMILTON

To the People of the State of New York:

Assuming, then, as an established truth, that if the several States were to break up their union or form new alliances from the ruins of the Confederacy, they would undergo the usual cycles of peace and war, friendship and animosity, with one another—just as any neighboring nations not united under a single government do—let us briefly outline some of the consequences that would result from such a situation.

War between the States, at the very start of their separate existence, would bring much greater hardships than is common in countries where established armies have long been maintained. The standing armies on the European continent, even though they have a troubling impact on liberty and economics, have nevertheless provided the clear benefit of making sudden conquests impossible and preventing the kind of rapid destruction that used to occur before their adoption. Advances in fortification have supported this as well. The nations of Europe are surrounded by chains of fortified locations that hinder invasions against each other. Campaigns are spent in capturing two or three border outposts just to enter an enemy’s land. At each step, similar obstacles sap the invader’s strength and slow their progress. In previous times, an invading army could press deep into a neighbor’s territory almost as quickly as word of their approach could travel; but now, a small, disciplined defensive force can, with the help of outposts, stall and ultimately defeat attacks by much larger armies. The history of warfare there is no longer one of nations conquered and empires overturned, but rather of towns being seized and then retaken, battles that settle nothing, retreats that benefit more than victories, much effort with little to show for it.

Here in America, the situation would be entirely the opposite. Suspicion of military establishments would cause them to be delayed as long as possible. The lack of fortifications would leave one state’s frontiers open to another, making invasions easier. The more populous States could easily overrun their smaller neighbors. Conquests would be easily gained, but hard to keep. War would therefore be aimless and predatory. PLUNDER and devastation always follow irregular armies. The suffering of individuals would be the main feature defining our military ventures.

This description is not exaggerated; though, admittedly, it would not long remain accurate. Protection from outside threats is the strongest influence on a nation’s actions. Even the deepest love of liberty eventually yields to the demands of security. The violent loss of life and property caused by war, and the constant strain and alertness imposed by ongoing danger, will eventually drive even the most liberty-loving nations to seek rest and safety in institutions that tend to undermine their civil and political rights. To become safer, they eventually become willing to risk being less free.

The institutions mainly referred to here are STANDING ARMIES and the corresponding structures of military organization. It’s said that standing armies are not prohibited by the new Constitution, and some infer from this that they can exist under it.(1) But their existence, from this point alone, is at best uncertain and debatable. However, standing armies, it could be argued, would inevitably arise from the breakup of the Confederacy. Frequent wars and constant fears—requiring constant readiness—will surely lead to them. The weaker States or alliances would adopt them first, to level the field with their stronger neighbors. They would try to compensate for having fewer people and resources by developing more efficient defenses, maintaining disciplined troops and building fortifications. At the same time, they would need to increase the power of their executive branch, which would naturally push their constitutions toward monarchy. War naturally increases the executive’s power at the expense of the legislative.

The measures mentioned would soon give the States or alliances using them an edge over their neighbors. Small states, or those of lesser natural strength, when governed vigorously and aided by well-trained armies, have often defeated larger, more naturally powerful states that lacked these advantages. Neither pride nor self-preservation would allow the more powerful States or alliances to tolerate this humiliating, temporary advantage for long. They would quickly employ similar measures to restore their lost superiority. Soon, throughout this country, we would see the same tools of despotism that have long plagued the Old World. This, at least, would be the natural progression of events, and our reasoning will be more accurate as it aligns with this reality.

These are not wild guesses based on imagined or theoretical flaws in a Constitution whose full power is held by the people or their elected officials. Rather, they are sound conclusions drawn from the ordinary and inevitable trends of human affairs.

It may be objected: why did standing armies not arise from the conflicts that so often plagued the ancient republics of Greece? There are several equally satisfactory answers. The hardworking lifestyles of modern people, focused on making a living and improving agriculture and commerce, are not compatible with a society of soldiers, which was the actual state of those republics. The means of generating revenue—greatly increased by the rise of gold and silver, by the arts of industry, and by the science of finance, which is a modern invention—along with the customs of nations, have completely changed the nature of war, making professionally organized armies, separate from the general population, an unavoidable part of frequent conflict.

There is also a big difference between military establishments in a country that is rarely vulnerable to internal invasion and one that is often subject to them and always fearful of them. The leaders of the former have no solid reason, even if they wanted one, to keep standing armies as large as those that the latter must have. In the first case, where the army is seldom used for internal defense, the people are not at risk of becoming accustomed to military rule. The laws don’t tend to be relaxed for military needs; the civilian state remains strong, neither corrupted nor mixed with military priorities. The army is so small that the community’s strength outweighs it; and since citizens aren’t used to relying on or being oppressed by soldiers, they harbor neither love nor fear of the military—they see them with wary acceptance as a necessary evil and remain ready to oppose any abuse of power.

Under these conditions, the army can help the magistrate suppress a small faction, a riot, or a rebellion; but it cannot enforce abuses against the united people as a whole.

In a country in the situation just described, the opposite happens. Constant danger forces the government to always be ready for defense; the armies must be large enough for immediate action. The ongoing need for their service elevates the status of the soldier and lowers that of the citizen. The military class rises above the civilian. Residents of areas that are often war zones are frequently deprived of their rights, weakening their sense of them; over time, people come to see soldiers not just as protectors, but as superiors. The step from there to seeing them as masters is not far or hard to take; but it is very hard to get people in such circumstances to mount a bold or effective resistance to military-backed takeovers.

Great Britain belongs to the first category. An island location and a strong navy largely free it from the threat of invasion, making a large standing army unnecessary. Only enough troops to resist a sudden raid, until the militia could assemble, has been considered sufficient. No reason of national policy has demanded, nor would public opinion stand for, a larger peacetime army. For quite some time, the other causes listed above—coming from internal war—have had little, if any, effect there. Its fortunate circumstances have helped to preserve the liberty that country still enjoys, in spite of widespread corruption. Had Britain been located on the continent and compelled, as geography would require, to keep military establishments as large as those of the other powers of Europe, she would likely be just like them—a victim of one-man rule. It’s possible, though not easy, that the island’s people could be enslaved by other means; but it wouldn’t happen through an army as small as the one typically maintained there.

If we are wise enough to preserve our Union, we may enjoy a similar advantage for generations. Europe is far from us. Her nearby colonies are likely to remain too weak to threaten us. In this situation, large military establishments would not be necessary for our security. But if we divide, and the pieces of our country either remain separate or—more likely—form two or three confederacies, it won’t be long before we are in the same predicament as the continental European powers—our liberties destroyed by the very measures we take to defend ourselves from each other's ambition and suspicion.

This is a strong and serious idea, worthy of deep consideration by every prudent and honest person, regardless of faction. If such people pause thoughtfully and consider the weight of this important point—if they reflect on its implications and outcomes—they will not hesitate to let go of minor objections to a Constitution whose failure would almost certainly end the Union. The insubstantial fears that haunt the overwrought minds of some opponents would quickly give way to the real, undeniable dangers.

PUBLIUS

1. This objection will be fully addressed in its proper place, showing that the only reasonable precaution that could be taken on this subject has been taken—and in a way better than in any previous American constitution, most of which offered no safeguard on this issue at all.

## FEDERALIST No. 9. The Union as a Safeguard Against Domestic Faction and Insurrection

### For the Independent Journal. Wednesday, November 21, 1787

HAMILTON

To the People of the State of New York:

A STRONG Union is absolutely vital to the peace and liberty of the States, serving as a barrier against domestic factions and uprisings. It is impossible to read the history of the small republics of Greece and Italy without feeling horror and disgust at the constant turmoil they endured, and at the rapid series of revolutions that kept them in a state of perpetual oscillation between tyranny and anarchy. If these states displayed occasional moments of calm, these serve only as brief respites before the storms that inevitably followed. When there are rare intervals of happiness, we view them with regret, knowing that the peaceful scenes before us will soon be swallowed up by the destructive waves of sedition and party animosity. If fleeting moments of glory emerge from the gloom, they may dazzle us with their brief brilliance, but they also remind us to lament that the flaws of government should corrupt and tarnish the remarkable talents and high achievements for which those celebrated regions have long been known.

From the chaos that marks the history of these republics, advocates of despotism have drawn arguments, not only against the form of republican government, but against the very principles of civil liberty. They have condemned all free government as incompatible with social order, expressing malicious satisfaction at the failures of its supporters. Thankfully, for humanity, in a few glorious cases, magnificent structures built upon the foundation of liberty and flourishing for ages have disproved their dark arguments. And, I am confident, America will provide another broad and solid foundation for such grand achievements, which will stand as permanent monuments to their error.

However, it cannot be denied that the criticisms they made of republican governments were accurate reflections of the examples from which they drew. Had it been impossible to devise better models, well-informed friends of liberty would have had no choice but to abandon the cause of such government as indefensible. Yet the science of politics, like most other sciences, has made great advances. The effectiveness of various principles is now well understood—principles that were either completely unknown or poorly understood by the ancients. The careful separation of powers into distinct departments; the creation of legislative checks and balances; the establishment of courts with judges serving during good behavior; representation of the people in legislature through their own elected deputies—these are either entirely new developments, or have reached near perfection only in modern times. These are powerful tools for preserving the merits of republican government while reducing or avoiding its faults. To this list of improvements to popular forms of civil government, I will venture—novel as it might seem to some—to add one more: a principle which has actually formed the basis of an objection to the new Constitution. I refer to the ENLARGEMENT of the SPHERE within which such governments operate—either by increasing the size of a single State, or by consolidating several smaller States into one large Confederacy. The latter is the matter directly at issue here. Still, it will be useful also to examine the principle in its application to a single State, which I will address elsewhere.

The usefulness of a Confederacy, both for suppressing factions and maintaining internal peace in States, and for increasing their external strength and security, is not a new concept. It has been put into practice in various countries and eras, and has earned the support of the most respected writers on political theory. Those who oppose the proposed plan have repeatedly quoted and distributed Montesquieu’s remarks about the need for a small territory in republican government. But they do not seem aware of other views that great man expressed, nor do they consider the consequences of the principle to which they adhere so readily.

When Montesquieu recommends small size for republics, the examples he used were far smaller than almost every one of our States. Virginia, Massachusetts, Pennsylvania, New York, North Carolina, and Georgia are all much larger than the models he described. If we apply his ideas strictly, we would be faced with the choice of seeking shelter under monarchy, or splitting ourselves into an endless number of small, jealous, quarrelsome republics—the wretched breeding grounds of constant discord, and the pitiful or contemptible objects of the world’s pity. Some writers on the other side seem to recognize this dilemma and have even gone so far as to suggest dividing the larger States. Such shortsighted policy—a desperate measure—might, by creating numerous petty offices, serve the interests of men who cannot wield influence outside their small circles of intrigue, but it would never advance the greatness or happiness of America’s people.

Leaving the detailed examination of this principle for another time, as already mentioned, let it be enough here to note that, taking the view of the very author most frequently quoted on this point, the recommendation would be to reduce the SIZE of the largest MEMBERS of the Union, but not to argue against their uniting under one confederate government. And that is the real question before us now.

Far from Montesquieu’s argument being opposed to a general Union of the States, he actually discusses the confederate republic as the solution for expanding the reach of popular government and combining the benefits of monarchy with those of republicanism.

“It is very probable,” (he says(1)), “that mankind would have been obliged at length to live constantly under the government of a single person, had they not contrived a kind of constitution that has all the internal advantages of a republican, together with the external force of a monarchical government. I mean a CONFEDERATE REPUBLIC.”

“This form of government is a convention by which several smaller STATES agree to become members of a larger ONE, which they intend to form. It is a kind of assemblage of societies that constitute a new one, capable of increasing, by means of new associations, till they arrive to such a degree of power as to be able to provide for the security of the united body.”

“A republic of this kind, able to withstand an external force, may support itself without any internal corruptions. The form of this society prevents all manner of inconveniences.”

“If a single member should attempt to usurp the supreme authority, he could not be supposed to have an equal authority and credit in all the confederate states. Were he to have too great influence over one, this would alarm the rest. Were he to subdue a part, that which would still remain free might oppose him with forces independent of those which he had usurped and overpower him before he could be settled in his usurpation.”

“Should a popular insurrection happen in one of the confederate states the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound. The state may be destroyed on one side, and not on the other; the confederacy may be dissolved, and the confederates preserve their sovereignty.”

“As this government is composed of small republics, it enjoys the internal happiness of each; and with respect to its external situation, it is possessed, by means of the association, of all the advantages of large monarchies.”

I have thought it right to quote these important passages at length, because they offer a clear summary of the key arguments for Union, and should set aside the false impressions created by misusing other parts of the work. They are also closely related to the main purpose of this paper, which is to show how the Union helps to suppress domestic faction and rebellion.

A distinction, more subtle than correct, has been introduced between a CONFEDERACY and a CONSOLIDATION of the States. It has been claimed that the key feature of a confederacy is that its authority is limited to the member states acting together, without any power over the individuals who make up those states. Some argue that the national council should not deal with any matters of internal administration. Absolute equality of voting rights among the members has also been said to be a defining characteristic of a confederate government. But these claims are largely arbitrary, and lack support in either principle or precedent. It has often happened that such governments have generally functioned in the way this distinction describes, but in most of them there have also been many exceptions, proving that there is no absolute rule on the matter. And, as this investigation continues, it will become clear that wherever the restrictive principle has prevailed, it has led to incurable disorder and weakness in government.

The definition of a CONFEDERATE REPUBLIC is simply “an assemblage of societies,” or an association of two or more states into one state. The scope, organization, and purposes of federal authority are simply matters of choice. As long as the separate organization of the members is not abolished—as long as it continues, by constitutional necessity, for local purposes—though it may be fully subordinate to the general authority of the union, it remains, in both theory and fact, an association of states, that is, a confederacy. The proposed Constitution, far from seeking to abolish State governments, actually makes them essential parts of national sovereignty by giving them direct representation in the Senate, and leaves them in control of important and exclusive areas of sovereign power. This matches, in every reasonable sense, the definition of a federal government.

In the Lycian confederacy, which consisted of twenty-three CITIES or republics, the largest had THREE votes in the COMMON COUNCIL, those of medium size had TWO, and the smallest had ONE. The COMMON COUNCIL appointed all the judges and magistrates of the cities. This was definitely the most sensitive kind of involvement in their internal affairs, for if anything seems rightly the job of local jurisdictions, it is appointing their own officers. Yet Montesquieu, referring to this association, says: “Were I to give a model of an excellent Confederate Republic, it would be that of Lycia.” Thus we see that the distinctions insisted on were not in the thinking of this wise scholar; and we are led to conclude they are new inventions based on a mistaken theory.

PUBLIUS

1. “Spirit of Laws,” vol. i., book ix., chap. i.

## FEDERALIST No. 10. The Same Subject Continued (The Union as a Safeguard Against Domestic Faction and Insurrection)

### From the Daily Advertiser. Thursday, November 22, 1787.

MADISON

To the People of the State of New York:

AMONG the many advantages promised by a well-constructed Union, none deserves to be more thoroughly explained than its ability to control and restrain the violence of faction. The friend of popular governments is never more concerned for their character and fate than when he considers their tendency toward this dangerous vice. Therefore, he will rightly value any plan that, without violating the principles he cherishes, offers a proper remedy for it. Instability, injustice, and confusion in public councils have truly been the fatal diseases under which popular governments everywhere have failed; they continue to be the favorite subjects from which opponents of liberty draw their most convincing arguments. The significant improvements made by the American constitutions over the popular models, both ancient and modern, certainly deserve great admiration; but it would be unrealistic to claim that they have completely removed the danger as much as was hoped. Complaints are heard everywhere from our most thoughtful and upright citizens—those equally devoted to both public and private integrity, and to public and individual liberty—that our governments are too unstable, that the public good is ignored in the struggles of rival parties, and that decisions are too often made, not according to the principles of justice and the rights of minorities, but by the superior force of an interested and overbearing majority. However much we wish these complaints were unfounded, the evidence of known facts will not allow us to deny that they are at least partly true. It will be found, in fact, on an honest review of our situation, that some of the problems we experience have wrongly been blamed on our governments; but at the same time, other causes cannot fully explain many of our greatest misfortunes—and especially the widespread and growing distrust of public commitments and concern for private rights, which echo across the continent. These must be mainly, if not entirely, the result of the instability and injustice that a spirit of faction has introduced into our public administrations.

By a faction, I mean a group of citizens—whether a majority or a minority of the whole—who are united and driven by some common impulse of passion or of interest, opposed to the rights of other citizens or to the lasting and collective interests of the community.

There are two ways to cure the problems of faction: one is to remove its causes; the other is to control its effects.

Again, there are two methods to remove the causes of faction: one is to destroy the liberty essential to its existence; the other is to give every citizen the same opinions, the same passions, and the same interests.

The first remedy can never be more accurately described than as worse than the disease. Liberty is to faction what air is to fire—a necessity without which it will instantly go out. To abolish liberty, which is essential to political life, just because it nourishes faction, would be as foolish as wishing to remove air, which is necessary for animal life, because it fuels fire’s destructive power.

The second remedy is as impractical as the first is unwise. As long as human reasoning remains fallible, and as long as people are free to use it, different opinions will inevitably arise. As long as the connection remains between reason and self-interest, opinions and passions will influence each other; and passions will attach themselves to those opinions. The diversity in human abilities, from which property rights originate, is just as much an insurmountable obstacle to a uniformity of interests. Protecting these abilities is the first goal of government. Because of the protection of different and unequal abilities to acquire property, people will inevitably possess different types and amounts of property; and these will influence the attitudes and views of their respective owners, creating divisions in society into various interests and parties.

The underlying causes of faction are therefore rooted in human nature; and we see them activated to different extents, depending on the circumstances of a particular society. Zeal for different views on religion, government, and many other issues—both theoretical and practical; attachment to different leaders ambitiously competing for dominance and power; or attachment to others whose fortunes have engaged human passions—these have in turn divided people into parties, inflamed them with mutual hostility, and made them more inclined to harass and oppress each other than to work together for the common good. This tendency in people to fall into mutual animosities is so strong that, when no substantial issue presents itself, even the smallest and most trivial distinctions have been enough to ignite their hostility and provoke their most intense conflicts. However, the most common and lasting source of factions has been the various and unequal distribution of property. Those who have property and those who do not have always formed distinct interests in society. Creditors and debtors are similarly distinguished. A landed interest, a manufacturing interest, a commercial interest, a financial interest, and many smaller interests inevitably arise in civilized nations, dividing them into different classes that act according to different attitudes and perspectives. Regulating these various and conflicting interests is the main task of modern legislation, and party spirit and faction are necessarily involved in the routine operations of government.

No person is allowed to be a judge in his own case, because his interests would bias his judgement, and likely even corrupt his integrity. All the more, a group of people is unfit to be both judges and parties at the same time; yet many of the most important acts of legislation are just such judicial decisions—not about the rights of one person, but about the rights of large groups of citizens. And what are the various classes of legislators but advocates and parties to the issues they decide? Is a law proposed about private debts? It is a question where creditors are on one side and debtors on the other. Justice should be the impartial judge between them. Yet the parties are, and must be, themselves the judges; and the largest party—or, in other words, the most powerful faction—will probably prevail. Should domestic manufacturing be encouraged, and to what extent, by putting restrictions on foreign goods? These are questions that would be decided differently by the landed and the manufacturing classes, and likely by neither with pure concern for justice and the public good. The allocation of taxes on different kinds of property seems to require the strictest impartiality; but perhaps there is no legislative act that presents a greater chance and temptation for a dominant party to violate the rules of justice. Every shilling they add to the burden of the minority is a shilling saved for themselves.

It is pointless to argue that enlightened statesmen will be able to balance these competing interests and make them all serve the public good. Enlightened statesmen will not always be in charge. And even when they are, such a balance cannot often be achieved without considering indirect or distant consequences, which rarely outweigh the immediate interests one party may have in ignoring the rights of another or the good of all.

The conclusion to which we come is this: the causes of faction cannot be removed, and relief can only be found in ways to control its effects.

If a faction is less than a majority, relief is provided by the republican principle, which allows the majority to defeat its harmful plans by a regular vote. It may slow the operations of government, it may shake society, but it will not be able to execute and disguise its violence under the forms of the Constitution. When a majority forms a faction, however, popular government allows it to sacrifice both the public good and the rights of others to its own dominant passion or interest. Protecting the public good and private rights from the dangers of such a faction, while also preserving the spirit and form of popular government, is the great goal of our inquiry. Let me add that it is the essential requirement by which this form of government can be freed from the criticism under which it has long suffered, and be recommended to the respect and approval of humanity.

By what means can this goal be achieved? Clearly, only by one of two ways. Either the existence of the same passion or interest in a majority at the same time must be prevented; or, if the majority shares such passion or interest, their numbers and geographic separation must make them unable to work together and carry out oppressive actions. If a group’s desire and its opportunity are allowed to coincide, we know well that neither moral nor religious motives can be relied upon as adequate restraints. They do not hold individuals back from injustice and violence, and they become even less effective the more people are combined together—that is, just when their effectiveness is most needed.

From this perspective, it follows that a pure democracy—meaning a society of a small number of citizens who gather to govern directly—cannot cure the problems caused by faction. Almost every time, a common passion or interest will be felt by a majority; communication and agreement naturally result from this type of government, leaving nothing to deter the majority from sacrificing the minority or an unpopular individual. For this reason, such democracies have always been scenes of unrest and conflict; they have always been found incompatible with personal security or property rights; and, in general, they have been as brief in their existence as they have been intense in their decline. Theoretical politicians who have supported this kind of government have mistakenly believed that by making everyone politically equal, they would also become perfectly equal in their possessions, opinions, and passions.

A republic—by which I mean a government based on representation—offers a different solution and promises the cure we are seeking. Let us investigate the ways in which it differs from pure democracy, and we will understand both the nature of the solution and the strength it gains from the Union.

The two main differences between a democracy and a republic are: first, in a republic, the government is delegated to a small number of citizens elected by the rest; second, a republic may include a greater number of citizens and a wider sphere of country.

The effect of the first difference is, on one hand, to refine and broaden public views by channeling them through a selected group of citizens whose wisdom can best determine the true interest of their country and whose patriotism and sense of justice are least likely to compromise it for temporary or partial interests. With such a system, it is very possible that the public voice, spoken by representatives of the people, will be more aligned with the public good than if announced by the people themselves convened for that purpose. On the other hand, the effect could be the opposite. Ambitious individuals with factious tempers, local biases, or ulterior motives might, through intrigue, corruption, or other means, first win votes and then betray the people’s interests. The question that arises is whether small or large republics are more favorable to electing proper guardians of the public welfare; and it is clearly determined in favor of the latter by two straightforward considerations:

First, note that, no matter how small the republic, the number of representatives needs to be increased enough to guard against the scheming of a few; yet, no matter how large, the number needs to be limited to prevent confusion from having too many. Therefore, the number of representatives in both cases is not proportional to the numbers in their respective populations, and proportionally greater in the small republic. As long as the proportion of qualified candidates is not less in a large than a small republic, the larger one offers a greater selection and therefore a better chance of choosing capable representatives.

Next, because each representative in a large republic will be chosen by more citizens than in a small one, it becomes harder for unworthy candidates to succeed through corrupt practices often seen in elections. The people’s votes, being more independent, are more likely to focus on those who have the most merit and the strongest, most widely recognized character.

Admittedly, as in most things, there is a balance to be struck, with inconveniences on either side. Increasing the number of electors too much will make representatives less familiar with all local circumstances and minor interests; decreasing it too much makes them too attached to these and less able to understand and pursue broad national objectives. The federal Constitution strikes a fortunate balance in this respect: major and general interests are left to the national government, while local and specific matters are led by the State legislatures.

The other distinction is the greater number of citizens and larger territory that can fall under a republican, as opposed to a purely democratic government. This is mainly what makes dangerous factions less of a threat in a republic than in a democracy. The smaller a society, the fewer and more homogeneous its parties and interests; the fewer the parties and interests, the more often a majority will be unified; and the smaller both the majority and the area they occupy, the easier for them to coordinate and enforce oppressive schemes. If you widen the sphere, you bring in more varied parties and interests; this reduces the likelihood that a majority of the whole will share a common motivation to violate others' rights—or, if such a motive exists, that all who feel it will recognize their own strength and act in concert. Moreover, when people sense their objective is unjust or dishonorable, communication and planning are held back by mutual distrust that increases with the number of people whose agreement is required.

Therefore, it's clear that the advantage a republic has over a democracy in restraining faction is also enjoyed by a large republic over a small one—and by the Union over the individual States. Does the advantage lie in the choice of representatives whose broad views and virtuous values make them less prone to local prejudice and schemes of injustice? It cannot be denied that the representation for the Union is most likely to possess these necessary qualities. Is the advantage in better security thanks to a greater variety of parties, making it less likely for any one to dominate and oppress the others? The larger number of parties in the Union strengthens this security. Or does the benefit come from greater challenges to the coordination and execution of unjust majority schemes? Here again, the Union’s scale gives it a clear advantage.

Factious leaders might spark unrest in particular States, but could not ignite widespread disruption throughout the others. A religious sect might turn into a political faction in part of the Confederacy, but the wide variety of sects across the nation would protect the national government from danger through sectarian influence. Obsessions with paper money, abolishing debts, equal division of property, or other improper or harmful projects are less likely to overtake the whole Union than just one of its members, in the same way a particular problem might trouble one county or district more than an entire State.

Therefore, in the Union’s extent and proper structure, we find a republican solution to the pervasive problems in republican government. As much as we take pride and pleasure in being republicans, that should be our zeal for nurturing the spirit and supporting the character of Federalists.

PUBLIUS

## FEDERALIST No. 11. The Utility of the Union in Respect to Commercial Relations and a Navy

### For the Independent Journal. Saturday, November 24, 1787

HAMILTON

To the People of the State of New York:

The importance of the Union, especially in matters of commerce, is one of the least disputed issues and one that has generally won the agreement of anyone acquainted with the topic. This is true for both our relations with foreign countries and with each other.

There are signs to suggest that America's energetic commercial spirit has already caused uneasiness among some European maritime powers. They seem concerned that we might interfere too much in the carrying trade, which supports their shipping and forms the foundation of their naval strength. Those of them with American colonies look to what this country could become with real anxiety. They can see possible threats to their American possessions from neighboring States, which have the willingness and would have the means to create a strong navy. Realizations like these naturally lead to strategies that promote divisions among us and deprive us, as much as possible, of a thriving commerce on our own ships. This would accomplish three things: keep us from interfering in their navigation, monopolize the profits of trade with us, and limit our potential to grow dangerously powerful. If discretion did not forbid, it would not be difficult to trace, with facts, the ways this policy is implemented by government ministers.

If we stay united, we can counteract such unfriendly policies in various ways. Using regulations that apply throughout all the States, we could require foreign countries to compete for the right to access our markets. This is not unrealistic to those who understand the value of access to a market of three million people—growing rapidly, mostly dedicated to agriculture, and likely to stay that way due to local circumstances—for any manufacturing nation; and the huge difference it would make to their trade and shipping to have a direct exchange in their own ships versus an indirect one using ships of another country. For example, if our government could exclude Great Britain (with whom we do not currently have a trade agreement) from all our ports, what impact would that have on their policies? Would it not allow us to negotiate, with high chances of success, for extremely valuable and broad commercial rights within their empire? These questions have arisen before and received plausible but ultimately unsatisfying answers. It’s been argued that our trade restrictions wouldn't change British policies because Britain could trade with us through the Dutch, who would act as intermediaries and purchasers for the goods our markets want. But wouldn’t Britain’s navigation suffer from not being able to carry its own goods? Wouldn’t most of the profits go to the Dutch to offset their risks and services? Wouldn’t the extra freight costs greatly reduce those profits? Wouldn’t such an indirect trade make it easier for other countries to compete in our markets by raising the price of British goods, and by shifting control of this important trade away from Britain?

Careful consideration of these points supports the belief that such disadvantages for Britain, along with a majority’s economic interests in the American trade and the pressure from the West Indies, would lead Britain to relax its policies and offer us privileges in island markets that would bring real benefits to our trade. Achieving such concessions from the British government—something we could not expect without offering similar privileges in our own markets—would also influence the conduct of other nations, which would not want to be entirely excluded from our trade.

Another way to influence Europe in this regard would be by establishing a federal navy. There’s little doubt that continuing the Union under an effective government would put us in position, soon enough, to build a navy which, if not equal to those of the greatest maritime powers, would at least carry respectable weight when added to either side in any conflict. This would be especially important in the West Indies. Sometimes, just a few warships, sent at the right moment, would be enough to decide a campaign on which major interests depend. Our situation gives us a commanding advantage here. If we also consider the value of American supplies for military operations in the West Indies, it's clear that such a position would allow us to negotiate for commercial privileges with major leverage. Both our friendship and, at times, our neutrality would be highly valued. By holding fast to the Union, we can hope before long to become the arbiter of European affairs in America, and to influence the balance here according to our interests.

On the other hand, without this favorable situation, the different parts of the country would compete with and hinder each other, ruining all the natural advantages given to us. In such a weak and divided state, our commerce would be exposed to constant interference by all nations at war, who, having nothing to fear from us, would feel free to take what they wanted from our property as often as it suited them. The rights of neutrality are respected only when they’re defended by adequate power. A weak nation, despised for its impotence, even loses the right to be neutral.

Under a strong national government, the natural strength and resources of the country, guided by a common purpose, would overcome any efforts by jealous European powers to restrain our growth. In fact, this would remove the motivation for such alliances, since success would become impossible. An active commerce, extensive navigation, and a thriving navy would then develop out of both moral and practical necessity. We could defy the petty schemes of minor politicians attempting to change the irresistible, unalterable course of nature.

But in a state of disunion, these alliances could form and might succeed. The maritime nations, taking advantage of our overall weakness, could dictate the terms of our political existence. As they share an interest in being our carriers, and even more in preventing us from becoming theirs, they would likely unite to hinder our navigation so thoroughly as to destroy it, leaving us with only PASSIVE COMMERCE. We would be forced to settle for the initial price of our goods, while the profits of our trade would be taken from us to enrich our enemies and oppressors. That unparalleled spirit of enterprise, which marks the genius of American merchants and navigators and is a limitless source of national wealth, would be suppressed and lost, and poverty and disgrace would spread over a country that, with wisdom, could have made itself the admiration and envy of the world.

There are important rights vital to American trade that rely on the Union—I refer to the fisheries, navigation of the Western lakes, and that of the Mississippi. Dissolving the Confederacy would lead to complicated questions about whether these rights would continue; powerful interests would almost certainly resolve these questions to our harm. Spain’s position on the Mississippi is clear. France and Britain, sharing interests with us in the fisheries and seeing them as crucial to their navigation, would not remain neutral toward the strong advantage we have shown in this important line of trade, allowing us to undersell them in their own markets. What is more natural than that they should seek to eliminate such dangerous competition?

This area of trade should not be seen as benefiting only a few. All the maritime States can, to varying degrees, benefit from it, and as mercantile capital grows, participation could broaden. As a training ground for seamen it already is— or, as the principles of navigation in different States become more aligned, will become—an invaluable national asset. It is essential for establishing a strong navy.

For this great national goal—a NAVY—union will help in many ways. Every institution thrives in proportion to the amount and spread of resources concentrated for its development and support. A navy of the United States, bringing together all resources, is achievable much sooner than a navy of any single State or small confederacy, drawing from only a part of the whole. In fact, different regions of confederated America each have unique advantages for this essential project. The Southern States provide greater quantities of naval stores—tar, pitch, and turpentine. Their timber for shipbuilding is also denser and longer-lasting. The longer lifespan of ships predominantly built from Southern wood would be significant both for naval strength and for national economy. Some Southern and Middle States offer more and higher-quality iron. Most seamen would come from the Northern States. The need for naval protection for foreign or maritime trade is self-evident, as is the link between such commerce and a thriving navy.

Unrestricted trade between the States themselves will boost the trade of each through exchanging their respective products, both to meet mutual needs at home and to export to foreign markets. Every part’s commercial activity will be enriched, gaining extra momentum and energy from the free circulation of goods. Business initiative will have much more scope, given the variety of products from different States. When one State’s main crop fails because of a poor harvest or bad season, another State’s staple can fill the gap. The variety and value of exports increase the vitality of foreign trade. Trade can be conducted on better terms with a greater number of different goods of a given value than with a small number of goods of the same value, due to market competition and fluctuations. Some products may be in high demand at certain times and unsellable at others; but with a variety, it is unlikely all will be unsellable at the same time, reducing the risks of major disruption. The savvy trader will quickly appreciate the truth of these points and will admit that the total balance of commerce in the United States is likely to be much more favorable than if the thirteen States remained disunited or in partial unions.

Someone may respond that whether united or not, there would still be close ties between the States, serving the same purposes. But such ties would be hampered, interrupted, and limited by many causes, which these papers have thoroughly discussed. Only a unified government can create unity in commercial and political interests.

This topic could be examined in even more inspiring and stimulating ways—but that would take us too far into speculation and introduce subjects unsuitable for a newspaper. I will simply say that our situation calls on us, and our interests require us, to aim for a leading role in American affairs. Just as the world is geographically divided into four parts, it is also divided politically, each with its own interests. Unfortunately for the other three, Europe—by force and diplomacy, violence and deceit—has extended her influence over them all: Africa, Asia, and America have all, in turn, been dominated by her. Europe’s long-standing superiority has made her see herself as Mistress of the World, treating everyone else as existing for her benefit. Supposedly profound philosophers have even claimed Europeans are physically superior, and have seriously argued that all animals—including people—degenerate in America, and that dogs even stop barking after living here for a while.(1) For too long, facts have seemed to back up these arrogant European views. It is up to us to defend the honor of humanity and to teach our arrogant brethren modesty. Union will allow us to do this. Disunion will simply make us another victim of their triumphs. Let Americans reject being tools of European greatness! Let the thirteen States, firmly bound in Union, build together one great American system, beyond the control of any foreign force or influence, and able to define the relationships between the Old World and the New!

PUBLIUS

“Recherches philosophiques sur les Americains.”

## FEDERALIST No. 12. The Utility of the Union In Respect to Revenue

### From the New York Packet. Tuesday, November 27, 1787.

HAMILTON

To the People of the State of New York:

THE effects of Union on the commercial prosperity of the States have already been thoroughly described. Now, let us examine how it promotes the interests of revenue.

All enlightened statesmen now recognize and accept that commercial prosperity is not only the most useful but also the most productive source of national wealth, making it a primary concern of their policies. By increasing ways for people to satisfy their needs, and by encouraging the flow and use of precious metals—so prized by human ambition and industry—commerce energizes industry and makes it much more active and plentiful. The diligent merchant, the hard-working farmer, the capable mechanic, and the dedicated manufacturer—in short, people of all occupations—look forward eagerly and optimistically to this rewarding payoff for their efforts. The old debate between agriculture and commerce has, through clear experience, been settled, and any rivalry between them is now silenced. Their supporters are satisfied that their interests are closely connected. It has been shown in many countries that, where commerce prospers, land values rise. And why would that not be so? How could something that provides easier markets for agricultural products, encourages land development, and is the strongest tool for increasing national wealth—not raise the value of land itself, which produces most of the objects of labor and industry? It is astonishing that such a simple truth ever had critics; this is just one of many examples of how poorly informed jealousy, or overcomplicated reasoning, can distract people from the most obvious facts.

A country’s ability to pay taxes is always largely related to how much money is in circulation and how quickly it changes hands. Since commerce contributes to both, it must naturally make tax payments easier and help ensure the treasury is supplied. The hereditary lands of the Emperor of Germany cover a large area of fertile, cultivated, and populous land, with a mild and rich climate. Some parts contain the best gold and silver mines in Europe. Still, without the supportive power of commerce, his revenues are limited. He has repeatedly needed financial help from other countries to safeguard his vital interests and cannot depend on his own resources to wage a sustained war.

But this is not the only way Union will help revenue. There are other aspects where its influence is even more obvious and direct. Given the country’s situation, the habits of its people, and our actual experience, it is not practical to raise large sums through direct taxes. Numerous tax laws have been passed; new ways to force collections have been attempted; yet public expectations have always been disappointed and State treasuries have stayed empty. The popular nature of government, combined with a real shortage of money that comes with weak and broken trade, has ruined every attempt at large collections. Legislatures have now realized the folly of continued efforts in this direction.

Anyone familiar with other countries will not be surprised. Even in wealthy Britain, where direct taxes are far easier to bear and to collect due to greater wealth and stronger government, most national revenue comes from indirect taxes, like imposts and excises. Duties on imports make up a big part of these.

In America, it’s clear we must rely chiefly on such duties for a long time yet. In most areas, excises must remain limited. Our people will not easily tolerate the intrusive and strict attitude of excise laws. Farmers, on the other hand, will be reluctant to pay even small amounts through taxes on their homes and land, and personal property is too insecure and difficult to track except through taxes on what people consume.

If these observations are valid, the best way to develop and extend such a valuable source of revenue must be best for our political welfare. And there can be no serious doubt that this depends on a general Union. The more it encourages commerce, the more it extends the revenue that can be drawn from it. The more it simplifies and strengthens regulations for collecting duties, the more productive those duties will be, and the greater the government’s power to raise rates as needed without harming trade.

The relative positions of these States; the numerous rivers that cross them and the bays that line their shores; the ease of communication in all directions; their shared language and customs; and their regular interactions—all these factors would make illicit trade between them easy and would ensure frequent evasion of each other's commercial regulations. The separate States or confederacies, driven by mutual suspicion, would be compelled to lower their duties to avoid the temptations of such trade. The character of our governments, for a long time to come, would not allow for the kinds of strict precautions that European nations use to guard the entrances to their countries by both land and water—and even in Europe, these measures are not enough to stop the daring strategies driven by greed.

In France, there is an army of patrols (as they are called) constantly at work enforcing their fiscal regulations against smugglers. Mr. Neckar estimates the number of these patrols at over twenty thousand. This highlights the enormous difficulty of preventing this type of trade when there is land communication, and makes clear the disadvantages we would face in collecting duties if, due to disunion, the States were put in a situation similar to France and her neighbors. The arbitrary and bothersome powers that these patrols must have would be unbearable in a free country.

If, instead, there were one government covering all the States, then for the most important part of our commerce, there would be only ONE SIDE to guard—the ATLANTIC COAST. Ships coming directly from foreign countries, loaded with valuable cargoes, would rarely risk the complicated and dangerous hazards involved in trying to unload before entering port. They would have to fear the dangers of the coast and the risk of being discovered both before and after reaching their final destination. A reasonable degree of vigilance would be sufficient to prevent any major violations of the revenue laws. A few armed vessels, wisely stationed at the entrances to our ports, could serve as effective and inexpensive guardians of the laws. And since the government would have the same interest in preventing violations everywhere, its coordinated efforts in each State would make enforcement highly effective. In this way, we would use our natural advantages by remaining united—advantages we would forfeit if we separated. The United States are far from Europe and at some distance from other major trading partners. Unlike the short, overnight journeys between the coasts of France and Britain, or other neighboring countries, travel to us from abroad can't happen that quickly. This is a great protection against direct smuggling with foreign countries. However, smuggling to one State through another would be both easy and safe. The difference between directly importing from abroad and indirectly importing through a neighboring State in small amounts, as time and opportunity allow, taking advantage of inland routes, must be obvious to any discerning person.

Thus, it is clear that one national government could, at much lower cost, extend import duties much farther than would be possible for the individual States or any partial confederacies. So far, I believe it can be confidently said that these duties have not averaged more than three percent in any State. In France, they are estimated at about fifteen percent, and in Britain, they are even higher.(1) There seems to be no reason why duties in this country couldn't be increased to at least three times their current level. The single item of distilled spirits, if federally regulated, could produce a considerable revenue. Based on the importation into this State, the total quantity imported into the United States can be estimated at four million gallons; which, at a shilling per gallon, would yield two hundred thousand pounds. This article could bear that rate of duty; and if such a duty reduced its consumption, that would benefit agriculture, savings, public morals, and the health of society. Perhaps nothing else is as great a cause of national extravagance as these spirits.

What would happen if we cannot fully utilize this resource? A nation cannot survive long without revenue. Lacking this critical support, it must give up its independence and be reduced to the status of a province. No government would willingly accept such an extreme situation. Revenue, therefore, must be obtained regardless. In this country, if most of it doesn't come from commerce, the burden must fall heavily on land. It has already been suggested that excises, properly defined, clash too much with the people's feelings for them to be a major source of taxation; nor, in the States where agriculture is almost the only occupation, are there enough items suitable for excise to allow for large collections that way. Personal property (as noted before), due to the difficulty of tracking it, can't be taxed heavily except through taxes on consumption. In large cities, there might be enough to guess at for individual cases to be oppressed without much overall benefit to the State; outside these areas, personal property would mostly escape tax collection. Still, the needs of government must be met by some means, so a lack of other resources will mainly burden landowners. And since the government's needs can never be adequately met unless every revenue source is open to it, the nation's finances, under such constraints, can never be truly safe or respected. In this way, we would not even have the comfort of a full treasury to offset the unfair burden on the valuable class of citizens who farm the land. Instead, public and private hardship would increase together in gloomy unison, both regretting the misguided decisions that led to disunion.

PUBLIUS

1. If I recall correctly, they amount to twenty percent.

## FEDERALIST No. 13. Advantage of the Union in Respect to Economy in Government

### For the Independent Journal. Wednesday, November 28, 1787

HAMILTON

To the People of the State of New York:

Alongside the issue of revenue, we should also consider that of economy. Money saved in one area can be used in another, meaning less must be taken from the people. If the States are united under one government, there will be only one national civil list to maintain; if they are divided into several confederacies, each will need a separate national civil list just as large, at least for the main departments, as would be necessary for a government of the whole. The idea of dividing the States into thirteen completely separate sovereignties is so extravagant and dangerous that few support it. Most thinkers who consider breaking up the Union imagine three confederacies—one of the four Northern, one of the four Middle, and one of the five Southern States. It is unlikely there would be more than three. In this arrangement, each confederacy would cover a territory larger than the kingdom of Great Britain. No well-informed person will suppose that the affairs of such a confederacy could be properly managed by a government less comprehensive in structure or function than the one proposed by the convention. Once a State gets to a certain size, it needs as much energy in government and the same administrative forms as a larger one. This point can't be proven mathematically, since there's no rule for measuring how much civil power is needed for any number of people; but given that the island of Britain, with about eight million people—about the same as each supposed confederacy—requires a high degree of authority to direct such a large public toward the common good, it's clear that the same amount of power would be needed for a society of even greater size. Civil power, if properly organized and exercised, can extend its influence far and can, so to speak, duplicate itself throughout a vast empire by setting up wise subordinate institutions.

The idea that each confederacy the States might form would need a government no less comprehensive than the one now proposed is supported by an even likelier scenario than the prospect of three confederacies as an alternative to general Union. If we closely consider the geography, commerce, habits, and prejudices of the different States, we're led to conclude that after disunion, they would likely organize themselves into two governments. The four Eastern States, for a variety of reasons that create national bonds and connections, can be expected to unite. New York, given its position, would never be so unwise as to leave itself exposed and unsupported against that confederacy. There are other clear reasons why New York would join. New Jersey is too small to consider itself as a frontier state against this even more powerful group, and nothing obvious would prevent her admission. Even Pennsylvania would have strong reasons to join the Northern alliance. An active foreign commerce based on her own shipping interests is her best policy, matching both the views and interests of her citizens. The more Southern States, for various reasons, may not feel much incentive to build up navigation. They might prefer a system in which all nations could freely carry and buy their goods. Pennsylvania might prefer not to mix her interests with a league holding such different policies. Since she must be a frontier no matter what, she might see more safety in facing the weaker Southern Confederacy rather than the stronger Northern one. This would give her the best chance to avoid becoming the Flanders of America. Whatever Pennsylvania decides, if New Jersey is in the Northern Confederacy, it's unlikely there would be more than one confederacy south of that State.

It’s clear that thirteen States united can support a national government far better than only one half, one third, or any number short of the whole. This fact strongly counters arguments against the proposed plan based on cost; an objection which, upon closer examination, appears to be entirely mistaken.

If, as well as considering the need for multiple civil lists, we remember the number of people who would have to be hired to police the inland borders between confederacies to stop illicit trade—and who, given the needs of revenue, will inevitably be required—and also the military establishments that would unavoidably arise from the conflicts and distrust among newly formed nations, it becomes clear that separation would be just as damaging to the economy as it would be to the peace, trade, revenue, and liberties of all.

PUBLIUS

## FEDERALIST No. 14. Objections to the Proposed Constitution From Extent of Territory Answered

### From the New York Packet. Friday, November 30, 1787.

MADISON

To the People of the State of New York:

WE HAVE seen the necessity of the Union as our defense against foreign dangers, as the preserver of peace among ourselves, as the guardian of our commerce and other shared interests, as the only alternative to those military establishments which have destroyed the liberties of the Old World, and as the proper remedy for the diseases of faction which have destroyed other popular governments—and of which troubling signs have appeared among us. All that remains, within this part of our discussion, is to address an objection that arises from the great size of the country the Union covers. A few comments on this topic are especially appropriate, since it is clear that opponents of the new Constitution are taking advantage of the common prejudice regarding the feasible scope of republican government, in order to substitute imaginary difficulties for the absence of solid objections they are unable to find.

The mistaken belief that republican government must be limited to a small area has already been explained and disproven in earlier papers. Here I will only note that this belief appears to arise mainly from confusing a republic with a democracy, and applying to the former arguments that only apply to the latter. The true difference between these forms has already been mentioned. In a democracy, the people govern directly in person; in a republic, they do so through elected representatives and agents. Therefore, a democracy must necessarily be confined to a small area. A republic, however, can extend over a large region.

To this accidental cause of the error may be added the influence of certain famous authors whose writings have greatly shaped modern political opinions. Being subjects of either absolute or limited monarchies, these writers have sought to exaggerate the advantages, or excuse the faults of those forms, by comparing them to the flaws of republican governments—and by pointing to the turbulent democracies of ancient Greece and modern Italy as examples. By conflating the terms, it has been easy to assign to a republic criticisms that apply only to democracies, such as the idea that a republic can only exist among a small number of people in a limited territory.

Such a misconception may have gone unnoticed because most of the popular governments in antiquity were democratic; and even today in Europe, which has given us the key idea of representation, there is no example of a wholly popular government founded entirely on that principle. If Europe can claim credit for discovering this great “mechanical power” in government—representation, which allows even the largest polity to focus its will and direct its power as the public good demands—then America can claim credit for building extensive pure republics on that discovery. It is only unfortunate that any of her citizens would want to deny her the further merit of demonstrating its full effectiveness in establishing the comprehensive system now under consideration.

As the natural limit of a democracy is the greatest distance from the central point that still allows all citizens to gather whenever required for their public duties—and includes no more people than can perform those duties together—so the natural limit of a republic is merely the greatest distance from the center that allows representatives to meet as often as necessary for administering public affairs. Can anyone say that the boundaries of the United States exceed this distance? Certainly not those who remember that the Atlantic coast is the Union’s longest side, that over the course of thirteen years the States’ representatives have been almost constantly convened, and that those from the most distant States have not been more often absent than those nearer to Congress.

To make a fairer assessment of this important matter, let’s consider the actual dimensions of the Union. The boundaries, as set by the peace treaty, are: to the east, the Atlantic; to the south, latitude thirty-one degrees; to the west, the Mississippi; and to the north, an irregular line sometimes above the forty-fifth degree, sometimes as low as the forty-second. The southern shore of Lake Erie lies below that latitude. Measuring from the thirty-first to the forty-fifth degree, the distance is nine hundred seventy-three common miles; from thirty-one to forty-two degrees, seven hundred sixty-four and a half miles. Averaging these gives a mean distance of eight hundred sixty-eight and three-fourths miles. The mean distance from the Atlantic to the Mississippi probably does not exceed seven hundred fifty miles. Comparing this size to that of several European countries, it is clear our system can suit it. It is not much larger than Germany, where a diet representing the empire is always assembled, or than Poland before its recent partition, where a national diet held supreme power. Setting aside France and Spain, we see that in Great Britain—even though it is smaller—the representatives from its northern end have at least as far to travel to their national council as those from the remote parts of the Union will.

Even with this favorable perspective, there are still more observations that will put the matter in an even more reassuring light.

First, remember that the general government does not have the full power to make and enforce laws. Its authority is limited to certain listed matters, which concern all the members of the republic but cannot be handled by any single one. The state governments, which can address all other local issues individually, will retain their proper authority and activity. If the Constitutional Convention’s plan proposed abolishing the states’ governments, its critics would have some basis for objection—though it would still be easy to show that, if they were abolished, the general government would be forced by self-preservation to restore them to their proper jurisdictions.

Second, the main goal of the federal Constitution is to unify the thirteen original States—which we know is feasible—and to include new States that may arise within or near them, which is just as feasible. Arrangements for those small or remote areas on our northwestern frontier must be left to people whose discoveries and experience will better fit them for the job.

Third, consider that communication throughout the Union will be made easier by new improvements. Roads will be shortened and kept in better condition; accommodations for travelers will increase and improve; and there will be an inland navigation along our eastern side, running nearly the entire length of the thirteen States. Connections between the Western and Atlantic regions, and between different parts of each, will become easier and easier with the many canals nature has provided and which human effort can so easily complete and link.

Fourth—and even more importantly—as almost every State will be on a frontier, each will have a reason, for its own safety, to make some sacrifices for the sake of general protection. Those States farthest from the center of the Union—and thus perhaps enjoying fewer day-to-day Union benefits—will be immediately adjacent to foreign powers and will therefore at times need the Union’s strength and resources the most. It might be inconvenient for Georgia, or the States on our western or northeastern edges, to send their representatives to the seat of government; but it would be far worse for them to face an invading enemy alone or to bear, by themselves, all the costs of defending against constant border threats. If these States gain less from the Union in some ways, they will gain more in others; thus, the proper balance will be maintained.

I present these thoughts to you, my fellow citizens, confident that the good judgment you have so often shown will give them due weight; and that you will never let obstacles—no matter how daunting in appearance, or how popular the errors on which they’re based—drive you into the dark and dangerous course favored by those who would break up the Union. Do not listen to the unnatural voices telling you that the people of America, bound together by so many ties of affection, can no longer live together as one family; can no longer look out for each other's happiness; can no longer remain fellow citizens within one great, respected, and prosperous nation. Do not heed those who impatiently say that the proposed form of government is unprecedented in political history—that it is something no theorist has ever imagined—that it attempts the impossible. No, my fellow Americans, do not listen to such corrupt words. Do not let your hearts accept the poison they spread; the kinship that runs in the blood of American citizens, the blood they have shed together defending sacred rights, consecrates their Union, and makes the idea of becoming strangers, rivals, or enemies horrifying. And if novelty is to be feared, believe me, the most alarming of novelties, the wildest of projects, the most reckless attempt, would be breaking us apart in the name of securing liberty and happiness. But why should the experiment of an extended republic be dismissed simply because it is new? Isn’t it the glory of the American people that, while they respect the opinions of the past and of other nations, they have not let blind reverence for tradition or for names overpower their own good sense, their knowledge of their circumstances, and the lessons of their own experience? To this courageous spirit, future generations will owe their freedom, and the world will owe the example of the many innovative ideas shown on the American stage in favor of personal rights and public happiness. If our leaders during the Revolution had never taken a step for which there was no precedent, if no government had been formed without an exact existing model, the people of the United States might now be counted among the sad victims of misguided leadership—at best, they would be struggling under the same oppressive governments that have destroyed freedom elsewhere. Fortunately for America, and—let us hope—for all humanity, they chose a nobler and new path. They made a revolution with no parallel in human history. They built governments unlike any others on earth. They planned a great Confederacy, which it is up to us to improve and maintain. If their work shows flaws, we must admire how few there are. If the greatest errors are in the structure of the Union, it is because that was the hardest task—yet it has now been improved by your convention’s action, and it is this action you must now consider and decide upon.

PUBLIUS

## FEDERALIST No. 15. The Insufficiency of the Present Confederation to Preserve the Union

### For the Independent Journal. Saturday, December 1, 1787

HAMILTON

To the People of the State of New York.

IN the previous papers, I have tried, fellow citizens, to show you clearly and convincingly how important Union is for your political safety and happiness. I have described a host of dangers you would face if you allowed that sacred tie binding Americans to be broken by ambition, greed, jealousy, or misleading arguments. In the remainder of the discussion I will present, the truths I wish to convey will be further confirmed by facts and new arguments. If the road ahead sometimes seems tedious or difficult, remember that you are seeking to understand the most important subject ever to face a free people; the field you must cross is vast in itself, and the journey has become even harder because sophistry has tangled the way with unnecessary complications. My aim is to clear these obstacles from your path as quickly as possible, without sacrificing thoroughness for speed.

Following the plan I laid out, the next point to examine is the “insufficiency of the present Confederation to the preservation of the Union.” Some may wonder why there is any need for reasoning or proof about a fact that no one really disputes, a fact that everyone seems to accept—including both friends and critics of the new Constitution. It is true that, though these groups disagree on other points, they generally agree on this: our national system has major flaws, and something must be done to save us from impending chaos. The facts supporting this view are no longer mere speculation. They have forced themselves upon the attention of the public, and finally even those whose poor policies most brought about our present crisis have reluctantly admitted the reality of those defects in our federal government—defects long noted and regretted by those who value the Union.

Indeed, we have nearly reached the last stage of national embarrassment. There is hardly anything that can hurt the pride or diminish the standing of an independent nation that we do not now experience. Do we have obligations that every respectable society demands we fulfill? These commitments are constantly and openly violated. Do we owe debts to foreign nations and our own citizens, debts incurred in defending our very existence? These remain unpaid, with no reasonable or effective plan for repayment. Do we possess valuable territories and important outposts still held by foreign powers, even though treaties clearly say they should have been returned long ago? These are still kept from us, harming both our interests and our rights. Are we able to defend against or repel such aggressions? We possess neither army, treasury, nor effective government.(1) Can we even protest with dignity? We must first clear the rightful criticisms against ourselves under the same treaty. Are we entitled—by nature and by agreement—to free navigation of the Mississippi? Spain denies us this. Is public credit a vital resource in times of national danger? We seem to have abandoned it as hopeless and irretrievable. Is commerce vital for national prosperity? Ours is at its lowest ebb. Is respect from foreign powers, which could shield us from foreign encroachments, present? Our weak government means they refuse even to negotiate with us. Our ambassadors abroad are idle figures of false sovereignty. Is declining land value a sign of national distress? The price of farmland is much lower than can be explained by the amount of wilderness for sale; only a widespread lack of public and private confidence, which seriously undermines all property, can explain it. Is private credit—essential for industry—healthy? The most important kind, that involving lending and borrowing, shrinks to its smallest scope, more from feelings of insecurity than lack of money. To shorten what would be a long and unpleasant list, we may ask: what symptom of national disorder, poverty, and insignificance could affect a community so richly endowed by nature as ours, that does not appear on the dark list of our misfortunes?

This is the melancholy situation to which we have been brought by the very principles and advice that now seek to deter us from adopting the proposed Constitution. Not content with having led us to the edge of a precipice, these same ideas now seem determined to push us into the abyss below. Here, my fellow citizens, driven by every motive that should influence an enlightened people, let us firmly stand for our safety, our peace, our dignity, and our reputation. Let us finally break the fatal spell that has lured us away from the path of happiness and prosperity for far too long.

It is true, as previously observed, that facts too stubborn to ignore have led to a general acceptance of the basic idea that there are serious defects in our national system. Yet the value of this admission, coming from the long-time opponents of federal policies, is ruined by their strong resistance to any remedy based on the only principles that could succeed. While they admit that the government of the United States lacks energy, they resist giving it the powers needed to gain that energy. They still seem to hope for things that are inherently contradictory: increasing federal authority without lessening State authority, aiming for sovereignty in the Union alongside complete independence in the States. Ultimately, they seem to blindly cling to the political absurdity of an imperium in imperio—a government within a government. This makes it necessary to fully expose the main defects of the Confederation so that it is clear our problems do not stem from small or isolated flaws, but from fundamental errors in its foundation, which can only be fixed by changing its very principles and the key supports of its structure.

The major and fundamental flaw in the current Confederation is its principle of LEGISLATION directed at STATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, as distinct from the INDIVIDUALS who make them up. While not all Union powers are based on this principle, it deeply affects those powers on which the effectiveness of the rest depends. Except for the rules of appointment, the United States has broad discretion to make requests for men and money, but it does not have the authority to raise either by regulations directly over individual Americans. As a result, though in theory their decisions are laws, constitutionally binding on the States, in practice these decisions are just recommendations the States may follow or ignore as they please.

It is a striking example of human inconsistency that, after all our warnings from experience, there are still people who oppose the new Constitution because it departs from a principle that has clearly ruined the old one, and which is clearly incompatible with the idea of GOVERNMENT itself—a principle that, if followed, would have to replace the calm influence of the courts with the violent force of the military.

There is nothing absurd or impractical about the idea of a league or alliance between independent nations for defined purposes, clearly spelled out in a treaty that sets all the details of timing, place, circumstance, and amount, leaving nothing to future judgment, and relying for its execution on the good faith of the parties. Agreements of this kind exist among all civilized nations and are subject to the usual ups and downs of peace and war, of being observed or ignored, as the interest or passions of those involved decide. Early in this century, Europe went through a craze for such agreements, from which politicians at the time hoped for benefits that never came. To create a balance of power and lasting peace, all diplomatic resources were exhausted and triple and quadruple alliances were formed, but these were quickly broken. This gave a clear and painful lesson to humanity about how little trust can be placed in treaties backed only by good faith, when general principles of peace and justice are up against immediate interests or passions.

If the individual States in this country intend to maintain the same relationship with each other, giving up the idea of a general and discretionary authority over them, then that plan would indeed be harmful and would bring upon us all the troubles outlined before. But it would at least have the merit of being consistent and workable. Giving up all thought of a federal government, we would be left with only a loose alliance for defense and offense; making us, by turns, friends and enemies to one another, as our common suspicions and rivalries—fueled by foreign intrigue—might dictate.

However, if we do not want to be placed in this dangerous position, if we still insist on having a national government, or, in other words, a supervisory power guided by a common council, we must be willing to include in our system the elements that form the key distinction between a mere alliance and a true government. We must extend the authority of the Union to the citizens themselves—the only proper subjects of government.

Government means the power to make laws. A law must carry a sanction—that is, a penalty or punishment for disobedience, or else, what claim to be a law will actually amount to nothing more than advice or recommendation. This penalty, whatever form it takes, can only be enforced in two ways: either through the courts and legal officers, or by military force—through the COERCION of the magistracy, or through the COERCION of arms. The first method can clearly only apply to individuals; the second must necessarily be used against political entities, communities, or States. It is clear that there is no court process by which, at the last resort, the laws can be enforced against States. Judgments may be pronounced against them for violations, but these sentences can only be enforced by the sword. In any association where the general authority only applies to the group entities, every breach of the law is essentially an act of war, and military force becomes the only way to achieve civil compliance. Such a situation does not deserve to be called government, and no wise person would entrust their happiness to it.

There was a time when we were told that States would not break the regulations of federal authority; that a feeling of common interest would govern the actions of each member and ensure total compliance with all the constitutional demands of the Union. Today, this idea would seem as unrealistic as much of what we now hear from those same voices will seem, once we learn again from experience—the most reliable source of wisdom. This way of thinking showed a lack of understanding of what actually drives human conduct, and it ignored the real reasons for establishing civil government. Why do we have government at all? Because people’s passions will not always conform to reason and justice unless they are restrained. Have we found that groups act more uprightly or with more selflessness than individuals do? In fact, every accurate observer of human nature finds the opposite, for obvious reasons. The desire for a good reputation has less influence when the blame for wrongdoing is spread among many, instead of resting on just one. Factionalism, which tends to corrupt the decision-making of every group, often pushes individuals in such groups to do things they would be ashamed of in private.

Beyond all this, the nature of sovereignty itself creates an impatience at being controlled, leading those who exercise such power to resent all outside attempts to restrain or guide them. Because of this, in every political group where many lesser sovereignties are supposed to unite for a common interest, there is always a tendency for each lower authority to pull away from the central one. This is easy to understand; it comes from the love of power. Power that is restricted is almost always a rival and enemy to the power that limits it. This simple truth should show us how little reason there is to expect that those managing the affairs of individual States in a confederacy will always, and in good spirits with unselfish concern for the public good, carry out the decisions of the central government. Human nature suggests the opposite.

Therefore, if the Confederation’s decisions can only be put into effect through the individual States’ administrations, there is little hope that they will be carried out at all. The leaders of each State, whether they have a legal right or not, will judge the measures for themselves. They will consider whether the proposed requirement suits their own interests and the conveniences or inconveniences it might bring them at that moment. All of this will be scrutinized narrowly for self-interest and suspicion, without the knowledge of national circumstances needed for good judgment, and with a strong bias toward local interests—almost ensuring a bad decision. This must be repeated in every State that makes up the Union; and the plans devised nationally will always be at the mercy of every local, ill-informed, and prejudiced opinion. Anyone familiar with the proceedings of popular assemblies, who has seen the difficulty—when no outside pressure exists—of getting them to agree on important issues, can imagine how impossible it must be to make multiple such assemblies, meeting at different times, in different places, and under different influences, to work together for long toward common goals.

For us, under the Confederation, the agreement of thirteen separate State governments is necessary for carrying out every major act passed by the Union. The result was both predictable and, now, evident. Union measures have not been carried out; the States’ failures have, little by little, reached an extreme, finally bringing the wheels of national government to a complete halt. Congress now barely has the means to keep up even the appearance of government until the States can agree on a real substitute for the current hollow form of federal government. This crisis did not happen overnight. The causes mentioned earlier first led to uneven and inconsistent compliance with Union requests. The greater failures by some States set examples and tempted even those States that did comply, or were only a little delinquent, to follow suit. Why should we do more than those who are partners with us in this political journey? Why should we bear more than our fair share of the common burden? Such questions—rooted in human selfishness—were irresistible, and even thoughtful people, who looked forward to the consequences, hesitated to argue against them. Each State, giving in to the promises of immediate benefit or convenience, gradually withdrew its support, until the fragile and tottering structure now threatens to collapse and bury us under its ruins.

PUBLIUS

1. “I mean for the Union.”

## FEDERALIST No. 16. The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union)

### From the New York Packet. Tuesday, December 4, 1787.

HAMILTON

To the People of the State of New York:

The tendency of the principle of lawmaking for States, or communities, treated as political units—the principle demonstrated by our own experiment—is confirmed by the history of all other confederate governments, in direct proportion to how much that principle was used in their systems. The validity of this fact deserves a careful and thorough examination. For now, I will only note that among all the confederacies of antiquity which history records, the Lycian and Achaean leagues—at least as far as remains of them exist—seem to have been the freest from this mistaken principle, and accordingly have earned and received the highest praise from political writers.

This questionable principle can, just as emphatically as accurately, be called the parent of anarchy. We have seen that violations by members of the Union are its natural and inevitable result, and that whenever such misconduct occurs, the only constitutional remedy is force—and that using force leads immediately to civil war.

It remains to consider whether so objectionable a tool of government, when applied to us, could even achieve its intended purpose. If the national government did not always have a large army at its disposal, it would either be unable to use force at all or, when it could, it would amount to a war within the Confederacy over breaches of the league, where the strongest side would likely prevail—regardless of whether it was those supporting or resisting the general authority. Rarely would the wrongdoing be limited to just one State, and if multiple States neglected their duties, their shared situation would likely encourage them to join forces in mutual defense. Beyond this sympathy, if a large and influential State happened to be the offending party, it would probably have enough influence over its neighbors to recruit some of them as allies. Seemingly reasonable arguments about the dangers to liberty could be easily invented; justifications for the party's shortcomings could be just as easily contrived to alarm, enrage, and win over even those States not guilty of any violation or neglect. This would be even more likely if the failures of the larger States were sometimes due to premeditated ambitions by their leaders, aiming to free themselves from any outside checks on their pursuit of personal power, and who would likely try to sway influential figures in neighboring States ahead of time. If associates could not be found nearby, they would turn to foreign powers, who would rarely be uninterested in encouraging discord within a Confederacy, especially one whose unified strength they greatly feared. Once conflict breaks out, passions know no bounds, and injured pride and resentment would likely push the resisting States to every possible extreme to avenge the insult or escape the shame of surrender. The very first such civil war would probably end in the breakup of the Union.

This could be called the violent death of the Confederacy. Its more natural death is what we seem now to be facing, if the federal system is not soon renewed in a stronger form. Given the spirit of this country, it's unlikely that the compliant States would often be willing to support the Union's authority by waging war on non-compliant States. They would be more inclined to pursue the easier path of putting themselves on an equal footing with the delinquents by copying their example, making everyone's guilt the protection of all. Our past experience shows this tendency in full light. In fact, there would be a nearly impossible challenge in determining when the use of force would be appropriate. When it comes to money contributions—which would be the most frequent source of noncompliance—it would often be impossible to determine if a shortfall was due to unwillingness or inability. Claiming inability would always be a ready excuse, and only in very blatant cases could its falsehood be exposed clearly enough to justify the harsh step of compulsion. Clearly, even this problem alone, whenever it arose, would open wide opportunities for factional interests, partiality, and oppression by whichever majority controlled the national council.

It's not hard to see that the States should not want a national Constitution that could only function through the constant use of a large standing army to carry out the government's ordinary decrees or requirements. Yet this is exactly the alternative proposed by those who oppose giving it authority to act directly on individuals. Such a system, even if it were possible, would quickly turn into military despotism; but in reality, it is utterly impossible. The Union would not have the resources to maintain an army large enough to keep even the bigger States in line, much less to form such an army in the first place. Anyone who considers how large and powerful some of these States are, even now, and looks ahead to what they might be like in fifty years, would immediately see how foolish and unrealistic it is to try to govern them with laws aimed at States acting together, enforced by coercion directed at them collectively. Such a scheme is scarcely less fanciful than the monster-taming feats attributed to the ancient legends of heroes and demigods.

Even in confederacies made up of members smaller than many of our counties, the principle of legislating for sovereign States backed by military force has never proved effective. It has rarely even been tried, except against the weaker States; and most attempts to force the rebellious and disobedient have sparked bloody wars, where one half of the confederacy raised arms against the other half.

Any thoughtful person must therefore conclude that if it's possible to build a federal government able to manage shared concerns and keep general peace, it must be founded for those purposes on the opposite principle advocated by the Constitution's opponents. It must be able to act directly on the citizens. It should require no intermediate legislatures, but must be empowered to use the ordinary judicial system to implement its own decisions. The grandeur of national authority must be shown through the courts. The Union government, like every State government, must be able to appeal directly to the hopes and fears of individuals, and win the support of the strongest passions in the human heart. In short, it must have all the means, and all the rights to use those methods, of enforcing its powers that the State governments themselves possess and use.

Some may object that if any State became hostile to national authority, it could at any time block enforcement of national laws and force the same issue of armed conflict that they accuse the opposing scheme of causing.

The seeming power of this objection disappears as soon as we remember the key difference between mere NON-COMPLIANCE and DIRECT, ACTIVE RESISTANCE. If implementing a Union measure required the State legislatures, they would only have to DO NOTHING or ACT IN A DELAYING WAY and the measure would fail. Such neglect could be disguised under seemingly reasonable but meaningless provisions, so that it would be invisible and would not alarm the people about the Constitution's safety. State leaders could even take credit for their covert breaches, claiming some temporary convenience, exemption, or advantage as the excuse.

However, if the laws of the national government didn't require State legislatures to implement them—and instead applied directly to the people—then the State governments could only block them by visibly and violently exercising an unconstitutional power. Avoiding action or using evasions would not work; they would have to act openly, making it plainly obvious they had overstepped national rights. Trying such a thing would always be risky if the Constitution could defend itself at all and if the people were wise enough to see the difference between legitimate and illegitimate authority. Success would not only need a factious majority in the legislature, but also the support of the courts and the people themselves. If the judges were not part of the conspiracy, they would declare such actions contrary to the supreme law, unconstitutional, and void. If the people were not influenced by the spirit of their representatives, they, as guardians of the Constitution, would side with the national government and tip the scales decisively. Such attempts would rarely be made lightly or rashly, since they would be dangerous to their promoters, except perhaps in cases of tyrannical federal power.

If rebellion against the national government arose from unruly or rebellious individuals, it could be suppressed by the same methods used under State governments for such misbehavior. Government officials, as the servants of the law, would certainly be as willing to defend national as local laws from lawless individuals. As for those smaller riots or disturbances sometimes caused by minor factions or temporary bad moods not shared by the community at large, the national government could draw on a much greater pool of resources to put them down than any single State could summon. And as for those catastrophic feuds that occasionally sweep through a nation, resulting either from serious government wrongdoing or from the sudden fever of the popular mood, they are beyond normal calculation. When they occur, they generally bring about revolutions and the breakup of nations. No government can totally prevent or control them. It's futile to try guarding against what is beyond human foresight or control, and silly to criticize a government because it can't do the impossible.

PUBLIUS

## FEDERALIST No. 17. The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union)

### For the Independent Journal. Wednesday, December 5, 1787

HAMILTON

To the People of the State of New York:

AN OBJECTION, different in nature from the one I previously discussed and answered, may also be raised against the principle of legislating for the individual citizens of America. It may be said that this would make the government of the Union too powerful, allowing it to absorb those leftover powers that ought to remain with the States for local purposes. Even granting the greatest amount of ambition that any reasonable man could suggest, I truly cannot see what would tempt those entrusted with running the general government to take away powers of this kind from the States. Regulating the local, everyday affairs of a State seems to offer little appeal to ambition. Commerce, finance, negotiation, and war appear to be the only fields that have any real attraction for ambitious minds, and all the authorities needed for these should, from the start, be placed in the national government. The administration of private justice between a State's own citizens, the supervision of agriculture and other similar concerns—in short, all matters suitable for local legislation—could never be desirable tasks for a central government. It's therefore unlikely that the federal councils would want to usurp such powers, because trying to exercise them would be as hard as it would be pointless; owning them would add nothing to the dignity, importance, or grandeur of the national government.

Even granting, just for argument's sake, that mere arrogance and lust for power could inspire such a desire, it would still be safe to claim that the will of the national representatives' constituents—that is, the people of the various States—would keep such an appetite in check. It will always be much easier for the State governments to intrude on national powers, than for the national government to intrude on State powers. This can be shown by the greater influence State governments will generally have over the people, provided they govern with fairness and wisdom—a fact that also shows the built-in weakness of all federal constitutions, and the need to structure them with as much strength as liberty allows.

The greater influence of particular governments would result partly from the broad design of the national government, but mainly from the kinds of issues State administrations would handle.

It's a known trait of human nature that our feelings usually weaken with the distance or remoteness of the object. In the same way that a person feels more connected to his family than his neighborhood, and to his neighborhood more than the larger community, the people of each State would naturally feel a stronger loyalty to their local governments than to the Union government—unless the latter provided a much better administration.

This strong tendency in human nature would find considerable support in the types of matters regulated by the States.

The many smaller interests that will naturally come under the supervision of the local governments, and which will create numerous streams of influence throughout society, cannot be listed in detail without leading to a discussion too long and boring to make up for any insight it might provide.

There is one outstanding benefit that falls to the State governments, which alone is enough to make matters clear and convincing—I mean the daily administration of criminal and civil justice. This, more than anything else, is the strongest, most widespread, and most appealing source of popular obedience and loyalty. It is the immediate and visible protector of life and property, with its rewards and penalties constantly before the public, affecting all those personal interests and daily concerns to which individuals are most sensitive. It does more than anything else to inspire in people affection, respect, and loyalty to the government. This great bond of society, which will flow almost entirely through the channels of the local governments, regardless of other influences, would give them such a clear command over their citizens as to always serve as a true balance—and, quite often, dangerous rivals to the power of the Union.

The activities of the national government, on the other hand, will be much less visible to most citizens; the resulting benefits will generally be noticed and valued only by more thoughtful or speculative individuals. Since these matters concern broader interests, they are less likely to touch people’s feelings, and so are less likely to create habitual respect and active loyalty.

This argument has been fully confirmed by the experience of all federal governments we know, and of all others even slightly similar.

Although the ancient feudal systems were not, strictly speaking, confederations, they still shared some similar aspects. There was a common leader—chief or monarch—whose authority covered the whole nation, along with many lower vassals or feudatories who were granted large estates, with their own numerous INFERIOR vassals or followers who worked that land in exchange for faithfulness or obedience to those above them. Each main vassal was like a sovereign over his personal domain. The result was constant resistance to the monarch’s authority, and frequent wars between large barons or primary feudatories themselves. The power of the national head was often too weak to preserve peace or protect ordinary people from their direct lords’ oppression. Historians often refer to this period in European history as the time of feudal anarchy.

When the monarch happened to be energetic, warlike, and especially capable, he gained personal respect and authority, which for a while stood in for more formal power. But in general, the barons’ power was stronger than the monarch’s; and often his rule was completely thrown off, with the great fiefs becoming independent principalities or States. In those cases when the monarch finally prevailed over his vassals, it was mostly because of the vassals’ tyranny over their people. The barons or nobles—the monarch’s rivals and the people’s oppressors—were feared and hated by both, until shared danger and common interest brought monarch and people together to destroy the aristocracy’s power. If the nobles had acted kindly and justly, keeping the loyalty and devotion of their followers, almost every struggle between them and the monarch would have ended in their favor, limiting or overturning royal authority.

This is not just guesswork or speculation. Scotland provides a strong example. The early spirit of clanship there, which connected nobles and followers almost like family, made the aristocracy far more powerful than the monarch until union with England finally subdued this wild and rebellious spirit—bringing it under the same rules of order that a more effective and rational civil system had already established in England.

In a confederation, the separate governments are quite similar to the feudal baronies—with the advantage that, for reasons already described, they’ll usually have the people’s trust and support. With such support, they could effectively resist any overreach of the national government; and it is possible they might even block its proper and necessary authority. The similarities lie in power rivalry and in the CONCENTRATION of large parts of national strength in specific DEPOSITORIES—once in the hands of individuals, now in the hands of political bodies.

A brief review of the history of confederate governments will further explain this important idea. Not understanding it has been the main source of our political mistakes and has misplaced our fears and suspicions. This review will be the focus of some upcoming papers.

PUBLIUS

## FEDERALIST No. 18. The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union)

### For the New York Packet. Friday, December 7, 1787

MADISON, with HAMILTON

To the People of the State of New York:

Among the confederacies of the ancient world, the most notable was that of the Greek republics, joined under the Amphictyonic council. According to the best historical accounts, this well-known institution was closely similar to the present Confederation of the American States.

The members remained independent and sovereign states, each with an equal vote in the federal council. This council had general powers to propose and decide whatever it thought necessary for the good of Greece: to declare and conduct war; to settle all disputes between members in the final instance; to fine any aggressor; to use the combined force of the confederacy against the disobedient; and to accept new members. The Amphictyons served as the guardians of religion and oversaw the immense wealth of the temple at Delphi, where they had jurisdiction over disputes between locals and those consulting the oracle. To further strengthen federal power, they swore to defend and protect the united cities, punish anyone who broke this oath, and take revenge on those who robbed the temple.

In theory, on paper, these powers seemed more than sufficient for all general purposes—in several important areas, they were even broader than those in the Articles of Confederation. The Amphictyons controlled the religious beliefs of the era—one of the main tools for government then; they had clear authority to use force against rebellious cities, and were sworn to use such authority when needed.

Yet the results were very different from the theory. These powers, like those of the current Congress, were exercised by delegates sent solely by the cities in their public roles, and enforced on them as such. This led to weakness, disorder, and ultimately the collapse of the confederacy. The most powerful members didn’t fear or submit—instead, they ruled over the others in turn. Athens, as Demosthenes tells us, dominated Greece for seventy-three years. Sparta (the Lacedaemonians) ruled for the next twenty-nine years; later, after the battle of Leuctra, Thebes took its turn dominating the rest.

According to Plutarch, it happened all too often that deputies from the stronger cities intimidated and bribed those from weaker ones—so the results went in favor of the most powerful.

Even while defending themselves and facing threats from Persia and Macedon, the members never truly worked together. Many of them, or most, were constantly outmaneuvered or bought by the common enemy. The periods between foreign wars were filled with internal upheavals, chaos, and bloodshed.

After the conclusion of the war with Xerxes, it appears that the Lacedaemonians demanded that several cities be expelled from the confederacy because of their unfaithfulness. The Athenians, realizing that the Lacedaemonians would lose fewer supporters by this measure than themselves and would gain greater control over public deliberations, vigorously opposed and defeated the proposal. This part of history demonstrates both the ineffectiveness of the union, the ambition and jealousy of its most powerful members, and the dependent and diminished status of the others. The smaller members, though theoretically entitled to revolve with equal pride and dignity around the common center, had actually become satellites of the major powers.

Had the Greeks, as Abbe Milot notes, been as wise as they were courageous, they would have learned from experience the need for a closer union and would have used the peace after their successful struggle against Persia to enact reform. Instead of following this obvious policy, Athens and Sparta, inflated by the victories and the glory they had achieved, became first rivals and then enemies; and did far more harm to each other than Xerxes ever had. Their mutual jealousy, fear, hatred, and acts of aggression led to the famous Peloponnesian War, which ultimately ended in the ruin and enslavement of the Athenians who had begun it.

Just as a weak government, when not at war, is always troubled by internal divisions, so these never fail to invite fresh disasters from abroad. When the Phocians plowed some consecrated land belonging to the temple of Apollo, the Amphictyonic council, reflecting the superstitions of the time, imposed a fine on the offenders. The Phocians, supported by Athens and Sparta, refused to obey the decree. The Thebans, along with other cities, took it upon themselves to uphold the authority of the Amphictyons and avenge the offense against the god. Being the weaker party, they invited Philip of Macedon, who had secretly encouraged the dispute, to help them. Philip eagerly seized the opportunity to pursue the designs he had long planned against Greek liberty. Through influence and bribes, he won over many of the popular leaders of the cities; with their help, he gained admission into the Amphictyonic council; and through his tactics and his military, made himself master of the confederacy.

Such were the consequences of the flawed principle on which this notable federation was based. As a thoughtful commentator on her fate observes: if Greece had been brought together by a stronger confederation, and had persevered in unity, she would never have worn the chains of Macedon and might have prevented the vast ambitions of Rome.

The Achaean league, as it is known, was another society of Greek republics, offering us valuable lessons.

Here, the union was much closer, and its structure was far wiser than in the previous example. As a result, although not immune from a similar disaster, it did not equally deserve it.

The cities making up this league maintained their local authority, chose their own officials, and preserved perfect equality. The senate, where they were represented, held the sole and exclusive right to make peace and war; to send and receive ambassadors; to enter into treaties and alliances; and to appoint a chief magistrate or praetor, who commanded their armies. This praetor, with the advice and consent of ten senators, not only governed during the senate’s recess but greatly influenced its proceedings while assembled. According to the original constitution, two praetors jointly administered, but after trial, it was found better to have just one.

It appears all the cities shared the same laws and customs, the same weights and measures, and the same currency. However, it is unclear to what extent this resulted from federal council authority. It is said only that the cities were, in effect, compelled to accept the same laws and customs. When Lacedaemon was inducted into the league by Philopoemen, it required abolishing the laws of Lycurgus and adopting those of the Achaeans. In contrast, the Amphictyonic confederacy, of which Lacedaemon had also been a member, had left her with full control over her government and laws. This alone highlights a major difference in the essence of the two systems.

It is very unfortunate that we have only fragmentary records left of this intriguing political structure. If we could fully understand its inner workings, it is likely it would shed more light on the science of federal government than any comparable experiment with which we are familiar.

One critical fact is confirmed by all historians who discuss Achaean affairs: both after the league’s revival by Aratus and before it was destroyed by Macedon’s schemes, the government displayed far more moderation and justice in administration, and less violence and unrest among the people, than any city exercising all the rights of sovereignty alone. Abbe Mably, in his observations on Greece, states that popular government, which elsewhere caused turmoil, brought no disorder to the members of the Achaean republic, BECAUSE THERE IT WAS MODERATED BY THE GENERAL AUTHORITY AND LAWS OF THE CONFEDERACY.

We should not too quickly conclude, however, that local factions did not at times trouble the individual cities, or that true harmony and order prevailed in the general system. The opposite is plainly shown by the changing fortunes and fate of the republic.

While the Amphictyonic confederacy endured, the Achaean league—comprising only the lesser cities—played little role in Greek affairs. When the former was conquered by Macedon, the latter survived, spared through Philip’s and Alexander’s policy. Under their successors, however, a different strategy appeared. The Achaeans were divided by internal scheming. Each city was led into separate interests; the union dissolved. Some cities fell under rule of Macedonian garrisons, others under local usurpers. Soon, the oppression and shame reawakened their desire for liberty. A few cities reunited. Others followed, as they managed to overthrow their tyrants. The league soon included nearly the entire Peloponnesus. Macedon saw this, but internal divisions prevented it from interfering. All Greece caught the spirit, and appeared ready to join a single confederacy, when jealousy and rivalry in Sparta and Athens, toward the Achaeans’ rising success, crushed the effort. Fearing Macedon, the league sought alliances with the kings of Egypt and Syria, rivals to Macedon and heirs of Alexander. This strategy was thwarted by Cleomenes, king of Sparta, who, driven by ambition, made an unprovoked attack on the Achaeans and, opposing Macedon, influenced the Egyptian and Syrian kings to break their alliances with the league.

The Achaeans were then faced with the dilemma of submitting to Cleomenes or seeking help from Macedon, their former oppressor. They chose the latter. The Greeks’ ongoing conflicts always offered Macedon a welcome excuse to intervene. A Macedonian army arrived quickly. Cleomenes was defeated. The Achaeans soon discovered, as is often the case, that a powerful, victorious ally is little different from a master. The most humble submission won them only the right to practice their own laws. Philip, now king of Macedon, soon provoked by his own tyranny, triggered new Greek coalitions. Though weakened by internal dissension and the rebellion of Messene, one of its members, the Achaeans, joined by the Aetolians and Athenians, organized opposition. Finding themselves still unequal to the task, they again resorted to seeking aid from outside. The Romans, who received their invitation, eagerly accepted. Philip was defeated, Macedon was conquered. A new crisis struck the league. Discord broke out among its members. The Romans encouraged these divisions. Callicrates and other popular leaders became corrupt tools for seducing their fellow citizens. To further feed discord and disorder, the Romans—astonishing those who had trusted their sincerity—had already declared universal liberty[^1] throughout Greece. With the same ulterior motives, they persuaded the cities to leave the league, by appealing to their pride in sovereignty. Through these means, this union, the last hope of Greece and of ancient liberty, was destroyed; and such weakness and confusion followed that Rome found little difficulty in completing the ruin their schemes had begun. The Achaeans were decimated, and Achaia remains burdened by the chains under which it groans to this day.

I considered it worthwhile to outline this important section of history, both for the multiple lessons it provides and because, as a supplement to the summary of the Achaean constitution, it dramatically illustrates the likelihood of federal bodies falling into anarchy among their members, rather than into tyranny by the central authority.

PUBLIUS

[^1]: This was simply another, more attractive term for making the members independent from central federal authority.

## FEDERALIST No. 19. The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union)

### For the Independent Journal. Saturday, December 8, 1787

MADISON, with HAMILTON

To the People of the State of New York:

THE examples of ancient confederacies cited in my last paper have not exhausted the source of lessons from experience on this subject. There are still existing institutions, founded on a similar principle, which deserve close examination. The first that comes to mind is the Germanic body.

In the early days of Christianity, Germany was divided among seven distinct nations, each without a common leader. The Franks, one of these nations, after conquering the Gauls, established the kingdom that now bears their name. In the ninth century, Charlemagne, its martial monarch, extended his power in every direction, and Germany became part of his vast dominion. When his sons divided the empire, Germany was made a separate and independent realm. Charlemagne and his immediate descendants held not only the symbols and dignity but also the real power of imperial rule. However, the main vassals—their fiefs having become hereditary—who made up the national diets that Charlemagne had not abolished, gradually threw off imperial authority and gained sovereign jurisdiction and independence. Imperial sovereignty was too weak to restrain such powerful subjects or to maintain the unity and peace of the empire. Outbursts of private war, waged with every imaginable calamity, broke out among the various princes and states. The authority of the emperor, unable to keep public order, steadily declined until it was almost gone in the chaos that marked the long gap between the death of the last emperor of the Suabian line and the rise of the first emperor of the Austrian line. In the eleventh century, the emperors enjoyed genuine sovereignty; but by the fifteenth century, they were left with little more than the trappings and titles of power.

From this feudal system—which itself displays many characteristics of a confederacy—evolved the federal system that forms the Germanic empire. Its powers are vested in a diet representing the members of the confederacy, in the emperor, who serves as the chief executive with a veto over the diet's decrees, and in the imperial chamber and the aulic council, two high courts with supreme authority in disputes involving the empire or its members.

The diet holds the general authority to legislate for the empire; to make war and peace; to negotiate alliances; to assign quotas of troops and funds; to build fortresses; to regulate currency; to admit new members; and to punish disobedient members by imposing the ban of the empire, which strips offenders of their sovereign rights and seizes their property. Members of the confederacy are explicitly forbidden to make agreements harmful to the empire, to impose tariffs or tolls on trade between themselves without the emperor and diet’s consent, to alter currency values, to commit injustice against one another, or to aid or shelter those who disturb the peace. The ban is imposed on anyone who violates these restrictions. Members of the diet, as such, may be judged by the emperor and diet, while in their private capacities, they are subject to the aulic council and imperial chamber.

The emperor’s prerogatives are numerous. Notably, he has the sole right to propose matters to the diet; to veto its actions; to appoint ambassadors; to confer titles and honors; to fill vacant electorates; to found universities; to grant privileges not harmful to the states; to collect and spend public revenues; and generally to oversee public safety. In specific matters, the electors form a council to assist him. As emperor, he owns no territory within the empire and receives no income for his position. However, his income and lands from other positions make him one of the most powerful princes in Europe.

From so grand a display of constitutional powers in the representatives and head of this confederacy, one might suppose that it defies the usual flaws of such systems. Nothing could be further from the truth. The fundamental principle on which it rests—that the empire is a society of sovereigns, that the diet represents sovereigns, and that the laws are directed at sovereigns—renders the empire a powerless body, unable to control its own members, vulnerable to external threats, and plagued by constant internal unrest.

The history of Germany is a record of wars between the emperor and the princes and states; wars among the princes and states themselves; abuses by the strong and oppression of the weak; foreign influence and interference; ignored or only partially fulfilled demands for men and money; failed attempts to enforce them, often resulting in bloodshed and devastation for the innocent as well as the guilty; all contributing to general weakness, confusion, and suffering.

In the sixteenth century, the emperor—with one part of the empire—was engaged against the other princes and states. In one such conflict, the emperor was forced to flee and nearly captured by the elector of Saxony. The late king of Prussia often found himself opposed to his imperial sovereign, and usually outmatched him. Disputes and wars among the members themselves have been so frequent that German history is full of gruesome accounts of these battles. Before the peace of Westphalia, Germany was ravaged by a thirty-year war in which the emperor and half the empire were on one side, and Sweden and the other half on the opposite. Peace was at last negotiated and imposed by foreign powers, and the provisions of this peace, to which foreign nations were parties, became a cornerstone of the Germanic constitution.

If the nation ever becomes somewhat united against an outside threat, its situation remains bleak. Military preparations are stalled by endless arguments caused by the jealousy, pride, differing aims, and competing claims of the sovereign members; before the diet agrees on anything, the enemy is already in the field, and before the federal troops are ready, the enemy is withdrawing to winter quarters.

The small national military force maintained in peacetime is poorly maintained, inadequately paid, divided by local bias, and supported by irregular and uneven contributions to the treasury.

The failure to maintain order and dispense justice among these sovereign states led to an experiment that divided the empire into nine or ten “circles” or districts, giving each an internal organization and charging it with military enforcement of the laws against delinquent members. This experiment has only highlighted the deep flaw in the constitution. Each circle is a miniature likeness of the deformations of this political monster. They either fail to enforce the laws or do so with all the destruction and violence of civil war. Sometimes whole circles default, worsening the problems they were meant to fix.

We can judge this method of military enforcement by an example given by Thuanus. In Donawerth, a free and imperial city in the Suabian circle, the Abbe de St. Croix held certain privileges. When he exercised these rights, he was mistreated by the people of the city. As a result, the city was placed under the ban of the empire, and the Duke of Bavaria, although from another circle, was assigned to enforce it. He arrived with ten thousand troops and, seeing an opportunity to revive an old claim—on grounds that his ancestors had once allowed the city to be separated from his territory—he took it in his own name, disarmed the residents, punished them, and reattached the city to his domains.

One may ask what has kept this disunited structure from collapsing completely. The answer is clear: the weakness of most of the members, who hesitate to expose themselves to foreign powers; the weakness of even the major members compared to the mighty states around them; the significant influence and authority the emperor derives from his own hereditary lands; and his personal interest in preserving a system tied to his family legacy and his status as the foremost prince in Europe. These factors support a fragile, unstable union, while the divisive quality inherent in sovereignty—made stronger with time—prevents any true reform based on effective consolidation. Even if this obstacle could be overcome, it is unlikely neighboring powers would tolerate a transformation giving the empire the strength and status it deserves. Foreign nations have long had a stake in the developments within this constitution, and have repeatedly worked to ensure its disunity and weakness.

If any clearer example is needed, Poland—as a government over local sovereigns—may stand as proof. Few other cases illustrate more starkly the disasters that come from such arrangements. Unfit for self-rule and self-defense, it has long been at the mercy of powerful neighbors, who have recently seen fit to relieve it of a third of its people and territory.

The connection among the Swiss cantons hardly qualifies as a confederacy, though it is sometimes cited as an example of such stability.

They have no common treasury, no shared troops even in wartime, no joint currency, no central court, nor any other mark of shared sovereignty.

They are kept together by their unique geography, by the individual weakness and insignificance of each, by fear of powerful neighbors (to one of whom they were once subject), by the few sources of conflict among a population with such simple and homogenous habits, by their mutual interest in dependent lands, by the help each needs in suppressing uprisings—help that is specifically agreed upon and often demanded and provided—and by the need for some regular process for settling disputes between cantons. That process is for the disagreeing parties each to select four judges from the neutral cantons, and if they cannot agree, those judges choose an umpire. This tribunal, under oath of impartiality, delivers a final verdict, which all the cantons are bound to enforce. The effectiveness of this arrangement can be measured by a clause in their treaty of 1683 with Victor Amadeus of Savoy, which requires him to mediate in disputes among the cantons and, if necessary, to use force against the obstinate party.

To the extent their situation allows comparison with that of the United States, it helps confirm the principle being established. No matter how effective the union may be in ordinary times, whenever a significant dispute arises, the bond fails. The religious conflicts, which have three times led to violent and bloody strife, effectively tore the league apart. Since then, the Protestant and Catholic cantons have had their own separate diets to handle the main issues, leaving the general diet with little more to do than manage the common bailages.

That division had another important result. It led to opposing alliances with foreign powers: Berne, leading the Protestant group, allied with the United Provinces; Luzerne, heading the Catholic group, allied with France.

PUBLIUS

1. Pfeffel, “Nouvel Abrég. Chronol. de l’Hist., etc., d’Allemagne,” notes that the pretext was to compensate himself for the expense of the expedition.

## FEDERALIST No. 20. The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union)

### From the New York Packet. Tuesday, December 11, 1787.

MADISON, with HAMILTON

To the People of the State of New York:

The United Netherlands are a confederacy of republics, or more accurately, of aristocracies with a very distinctive structure, yet they confirm all the lessons drawn from those we have already examined.

The union is made up of seven coequal and sovereign states, and each state or province is itself composed of equal and independent cities. In all significant matters, not only the provinces but also the cities must be unanimous.

The sovereignty of the Union is represented by the States-General, usually consisting of about fifty deputies selected by the provinces. They serve for various terms—some for life, some for six, three, or one year; in two provinces, their appointment continues at the pleasure of the appointing authority.

The States-General have the power to make treaties and alliances; to declare war and peace; to raise armies and equip fleets; to determine quotas and demand contributions. However, in all these cases, unanimity and the approval of their constituents are necessary. They have the authority to appoint and receive ambassadors; to carry out already established treaties and alliances; to oversee the collection of import and export duties; to regulate the mint, preserving provincial rights; and to govern the dependent territories as sovereigns. The provinces are restricted, unless given general consent, from entering into foreign treaties; from establishing import or export taxes that harm others; or from charging their neighbors higher duties than they charge their own citizens. A council of state, a chamber of accounts, and five colleges of admiralty support and strengthen the federal administration.

The executive magistrate of the union is the stadtholder, who is now a hereditary prince. His main influence in the republic comes from this independent status; from his vast private estates; from his family connections to key European rulers; and, perhaps most of all, from being stadtholder in each province as well as for the union. In this provincial capacity he appoints town magistrates under certain rules, carries out provincial decrees, chairs provincial tribunals at will, and has the power to grant pardons throughout.

As stadtholder of the union, he also holds significant prerogatives.

In his political role, he can resolve disputes between provinces if other methods fail; attend deliberations of the States-General and their conferences; grant audiences to foreign ambassadors; and maintain agents for his personal affairs at foreign courts.

In his military role, he commands the federal troops, manages garrisons, generally oversees military matters; appoints all officers from colonel down to ensign, as well as governors and commandants of fortified towns.

In his naval role, he serves as admiral-general and oversees everything related to the naval forces; presides over the admiralties either personally or by proxy; appoints lieutenant-admirals and other officers; and sets up councils of war, whose sentences are not carried out until he approves them.

His public revenue, apart from his private income, is three hundred thousand florins. The standing army under his command consists of about forty thousand men.

Such is the structure of the famous Belgic confederacy, as described on paper. But what character has practice actually given it? Weakness in the government; conflict among the provinces; foreign influence and humiliation; an insecure peace, and unique suffering in wartime.

Grotius long ago observed that nothing but the deep dislike of his countrymen for the house of Austria prevented them from being destroyed by the flaws in their constitution.

The Union of Utrecht, says another noted writer, gives an authority to the States-General that appears sufficient to maintain harmony, but the jealousy within each province makes the reality very different from the theory.

Another writer points out that the same document requires each province to collect certain contributions; but this rule never has been, and probably never will be, carried out, because the inland provinces, having little commerce, cannot afford to pay an equal share.

When it comes to contributions, it is customary to ignore the rules of the constitution. The danger brought on by delays forces the consenting provinces to pay their quotas without waiting for the rest; then they attempt to recover the money from the others through frequent deputations or by other means as possible. The great wealth and influence of the province of Holland allow her to accomplish both these aims.

It has happened more than once that deficiencies had to be collected ultimately at the point of the bayonet—a thing possible, though dreadful, in a confederacy where one member has more power than all the rest, and where several are too small to consider resisting. But it is completely impossible in a confederacy where several members are equal in strength and resources, and each is capable of strong and persistent defense.

Foreign ministers, says Sir William Temple—himself a foreign minister—avoid decisions taken ad referendum by tampering with the provinces and cities. In 1726, the treaty of Hanover was delayed for a whole year by such methods. Many other similar examples are well known and notorious.

In times of crisis, the States-General have often been forced to go beyond their constitutional limits. In 1688, they concluded a treaty themselves at great personal risk. The treaty of Westphalia in 1648, by which their independence was formally and finally recognized, was concluded without the consent of Zealand. Even as recently as the last treaty of peace with Great Britain, the constitutional requirement of unanimity was ignored. A weak constitution must inevitably end in either dissolution, due to lack of proper powers, or the usurpation of powers necessary for public safety. Whether such power-taking, once started, stops at a beneficial limit or pushes on to a dangerous extreme depends on circumstances. Tyranny has perhaps more often grown out of needed but constitutionally unsupported assumptions of power during emergencies than from the full use of broad constitutional authority.

Despite the calamities caused by the stadtholdership, some believe that without his influence in the individual provinces, the anarchic tendencies visible in the confederacy would have dissolved it long ago. “Under such a government,” says Abbe Mably, “the Union could never have survived unless the provinces contained within themselves a mechanism capable of overcoming their slowness and compelling them to unite in thoughts and actions. This mechanism is the stadtholder.” Sir William Temple observed, “that during the intervals without a stadtholder, Holland, with its wealth and authority, which drew the others into a kind of dependence, took on that role.”

These are not the only factors that have restrained the confederacy from falling into anarchy and dissolution. The surrounding powers impose an absolute necessity for at least some degree of union, while at the same time they encourage the constitutional flaws that leave the republic somewhat at their mercy.

True patriots have long lamented the fatal consequences of these flaws, and have tried no less than four times, through EXTRAORDINARY ASSEMBLIES convened especially for this purpose, to provide a remedy. Each time, their commendable efforts have failed to UNITE THE PUBLIC COUNCILS in fixing the known, admitted, and destructive evils of the current constitution. Let us pause, fellow citizens, for a moment over this somber and cautionary lesson from history; and while we mourn the calamities born of conflicting opinions and selfish passions, let us also give thanks to Heaven for the fortunate harmony that has guided discussions about our own political well-being.

There was also a plan to establish a general tax administered by federal authority. This, too, had its opponents and did not succeed.

Now, this unfortunate people seem to be suffering from internal upheavals, disputes among the states, and actual invasions by foreign armies—the crisis of their fate. All nations are watching this grim spectacle. The most immediate wish, driven by humanity, is that this hard trial will lead to such a change in their government as will bring about union and make it the foundation of peace, freedom, and happiness. The next hope is that the asylum which, we trust, will soon guarantee these blessings in our own country may receive and comfort them after the outcome of their own disaster.

I make no apology for focusing so much on these federal precedents. Experience is the voice of truth; and where its answers are clear, they should be conclusive and sacred. The important truth it plainly reveals in the present case is this: a sovereignty over sovereigns, a government over governments, a system of laws for communities instead of for individuals, is not only a contradiction in theory but, in practice, undermines civil order and government. It replaces LAW with VIOLENCE, or the destructive COERCION of the SWORD, rather than the moderate and beneficial COERCION of the MAGISTRACY.

PUBLIUS

## FEDERALIST No. 21. Other Defects of the Present Confederation

### For the Independent Journal. Wednesday, December 12, 1787

HAMILTON

To the People of the State of New York:

Having in the last three numbers taken a brief look at the key circumstances and events that show the nature and fate of other confederate governments, I shall now continue by listing the most important defects that have so far dashed our hopes for the system established among ourselves. To choose a safe and satisfying remedy, we must fully understand the extent and seriousness of the disease.

The next most obvious flaw of the current Confederation is the total lack of any SANCTION to its laws. The United States, as currently structured, have no power to require obedience or to punish disobedience to their resolutions—whether by fines, suspending or removing privileges, or any other constitutional means. There is no explicit grant of authority for them to use force against delinquent members; and if such a right were claimed as resulting from the nature of the social contract among the States, it would only be by inference and construction, contradicting that part of the second article which says, “that each State shall retain every power, jurisdiction, and right, not EXPRESSLY delegated to the United States in Congress assembled.” Doubtless, it seems totally absurd to suppose such a right does not exist—yet we are faced with either accepting that implausible idea, or else undermining or explaining away a clause that has lately been a recurring theme in praise by opponents of the new Constitution; and whose absence from the new plan has drawn much plausible censure and strict criticism. If we do not wish to weaken the power of this praised provision, we must conclude that the United States present the strange spectacle of a government without even the appearance of constitutional power to enforce its own laws. It will be clear from the examples just given that, in this respect, the American Confederacy is unique among its kind and stands as a new and unprecedented phenomenon in the political world.

Another major flaw in the federal system is the lack of a mutual guarantee among State governments. Nothing of the kind is provided in its articles; and to imply a guarantee based solely on practical benefit would be an even greater violation of the clause already mentioned than to infer a power of coercion on similar grounds. The lack of a guarantee might endanger the Union by its consequences, but is not as directly threatening to its existence as the lack of constitutional authority to enforce its laws.

Without such a guarantee, help from the Union to resist domestic dangers that could threaten the continued existence of State constitutions must be given up. Usurpation could arise in any State and crush the freedoms of the people, while the national government could do nothing more than stand by and watch its advance, powerless except for expressing indignation and regret. A successful faction could establish tyranny on the ruins of order and law, with no legal way for the Union to help the government's supporters. The chaotic situation recently experienced in Massachusetts proves these dangers are not just theoretical. Who can say what might have happened during those upheavals if the rebels had been led by someone like Caesar or Cromwell? Who can predict what effect a despotism in Massachusetts would have had on the liberties of New Hampshire or Rhode Island, or of Connecticut or New York?

The excessive pride in State importance has led some to object to the idea of a federal guarantee, on the grounds that it amounts to unnecessary interference in members' domestic affairs. Such an objection would keep us from gaining one of the main benefits of union, and comes only from misunderstanding the true nature of the provision. It could never prevent reforms to a State constitution achieved by a legal and peaceful majority of the people. That right would remain fully protected. The guarantee would only apply against changes made by force. When it comes to preventing such disasters, there can never be too many safeguards. The peace of society and stability of government rely completely on the effectiveness of measures taken in this area. Where the people hold all government power, there is even less excuse for using violence to cure occasional, partial troubles within a State. The proper cure for bad administration, in a popular or representative government, is simply to change the officials. A national guarantee would be aimed as much against rulers' abuses as against outbreaks of faction, chaos, or sedition in the community.

Another fundamental error in the Confederation is the practice of regulating the States’ contributions to the national treasury by QUOTAS. Its contradiction with the need to adequately supply national needs has already been discussed and was proven by practical experience. I mention it now only regarding fairness among the States. Anyone used to considering the sources and makeup of national wealth must know that there’s no universal standard to accurately measure it. Neither the value of land nor the number of people—each offered in turn as the basis for State contributions—can claim to be just representatives. If we compare the wealth of the United Netherlands with that of Russia, Germany, or even France, and compare the total value of land and the total population of that small area with those of any of these much larger countries, we immediately see there’s no proportionality between either dataset and the actual relative wealth of those nations. The same would hold if we compared several of the American States. Contrast Virginia with North Carolina, Pennsylvania with Connecticut, or Maryland with New Jersey, and we see that these States’ abilities to supply revenue bear little or no relationship either to their land values or to their population. The same can be shown within the counties of a single State. Anyone familiar with New York knows that the working wealth of King’s County is much greater compared to Montgomery than would appear if we used only total land value or population to judge!

The wealth of nations depends on an endless variety of factors. Location, soil, climate, the types of products, the system of government, the character of the citizens, their level of knowledge, and the condition of commerce, arts, and industry—all these, along with many other circumstances too complex, subtle, or accidental to specify fully, create differences in the relative prosperity and riches of different countries that are almost unimaginable. The clear consequence is that there can be no universal measure of national wealth, and therefore, no fixed general rule by which to determine a state’s ability to pay taxes. Any attempt to regulate the contributions of confederation members by such a rule is bound to produce glaring inequality and extreme oppression.

This inequality alone would be enough in America to eventually lead to the destruction of the Union, if any method could be devised to enforce compliance with its requirements. The suffering States would not long agree to stay associated under a system that distributes public burdens so unequally and that would impoverish and oppress the citizens of some States, while those in other States would barely notice their comparatively light obligations. However, this is an evil inherent in the principle of quotas and requisitions.

There is no escape from this problem except by empowering the national government to raise its own revenues in its own way. Imposts, excises, and, more generally, all duties on consumer goods may be compared to a liquid, which will eventually find its own level according to people’s ability to pay. Each citizen, to some degree, determines what he contributes, and can regulate it according to his resources. The wealthy may spend lavishly, while the poor can be frugal; and private oppression can always be avoided by sensibly choosing what items to tax. If some States experience inequalities from duties on certain goods, these will likely be balanced out by proportional inequalities in other States, from duties on different goods. Over time, an equilibrium, as close as possible in such a complex matter, will be established across states. Or, even if some inequalities remain, they would not be as severe, as constant in their effects, or as obviously unfair as those that would inevitably result from quotas, no matter how quotas are calculated.

A clear advantage of taxes on consumer goods is that they include a built-in safeguard against excess. They set their own limit, which cannot be exceeded without undermining their purpose—namely, to increase revenue. In this context, the saying is as accurate as it is clever: “in political arithmetic, two and two do not always make four.” If duties are set too high, consumption drops, tax collection is evaded, and revenue goes down compared to keeping rates at moderate, reasonable levels. This forms a strong barrier against oppression by such taxes, and serves as a natural limit on the power to impose them.

These kinds of taxes are usually called indirect taxes, and for a long time, will make up most of the revenue raised in this country. Direct taxes, which mainly concern land and buildings, might allow for a rule of apportionment. Either the value of land or the number of people could serve as a standard. Agriculture and population have been viewed as closely connected. And as a rule for the intended purpose, population, because of its simplicity and certainty, deserves preference. In any country, valuing all land is a massive task; in a country that is imperfectly settled and constantly improving, the difficulties are almost impossible to overcome. The cost of an accurate valuation is a major problem everywhere. In a type of taxation where there is no natural limit to government discretion, establishing a fixed rule—if it is not inconsistent with the goal—may involve fewer problems than giving government unchecked discretion.

PUBLIUS

## FEDERALIST No. 22. The Same Subject Continued (Other Defects of the Present Confederation)

### From the New York Packet. Friday, December 14, 1787.

HAMILTON

To the People of the State of New York:

In addition to the flaws already discussed in the current federal system, there are other, equally serious ones that make it entirely unfit to manage the Union’s affairs.

The lack of power to regulate commerce is universally recognized as one such defect. The value of this power has already been discussed in our earlier analyses; for that reason, and because there is broad agreement on its necessity, not much more needs to be said here. It is plain, even at a glance, that no issue involving trade or finance more clearly demands federal oversight. The absence of such power has already prevented the formation of advantageous treaties with foreign nations and has led to conflicts among the States. No nation familiar with our political structure would be foolish enough to negotiate important agreements with the United States, knowing that the commitments made by the Union could be broken at any moment by its members, and seeing that they could enjoy every benefit in our markets without offering us anything in return, except what suited their short-term interest. No wonder, then, that Mr. Jenkinson, in the House of Commons introducing a bill to regulate temporary trade between the two nations, made it clear that similar measures in earlier bills had fully satisfied British commercial interests, and that it was wise to maintain this approach until it became clear whether the American government would become more stable.(1)

Several States have tried, through separate bans, restrictions, and exclusions, to influence Britain’s policies in this area, but lack of coordination—caused by the absence of central authority and by conflicting interests among the States—has undermined every such attempt and will continue to do so as long as these obstacles to unified action remain.

Conflicting and unfriendly regulations by some States, contrary to the true spirit of the Union, have, in various cases, caused legitimate resentment and complaint among others. If not controlled by a national authority, such examples are likely to increase and become both serious causes of animosity and major barriers to trade within the Confederacy. “The commerce of the German empire(2) is constantly hindered by the huge number of duties imposed by the different princes and states on goods passing through their territories. Because of this, the fine streams and navigable rivers of Germany are almost useless.” Even if Americans would never allow such a situation in their own country, it is reasonable to expect, as state rules increasingly come into conflict, that the people of each state would eventually see and treat those of others as foreigners.

The power to raise armies, according to the plain meaning of the Articles of Confederation, is only a power to ask the States for quotas of men. This practice, as seen during the recent war, caused major problems for an effective and economical defense. It led to competition among States, amounting to an auction for soldiers. To provide their quotas, States outbid each other until recruitment bounties became huge and unsustainable. The hope that bounties would go even higher led eligible men to delay enlisting and made them reluctant to sign up for longer periods. As a result: slow and insufficient recruitment during critical emergencies; short enlistments at great expense; constant changes among troops, ruining their discipline and often putting public safety at risk from a disbanded army. This also led to oppressive ways of raising men, which were only tolerated because of the strong desire for liberty.

This method of raising troops is as bad for fairness as it is for economy and effectiveness. States close to the fighting, motivated by self-preservation, tried hard to deliver their quotas—sometimes beyond their capacity; those farther from danger were, on the whole, much less active. The immediate unfairness of this system, unlike the case with money contributions, was not relieved by hope of future payment. States that did not pay their share of money could at least be held responsible for what they owed; but shortages of troops could not be accounted for in the same way. However, we need not regret this lost hope, considering how unlikely it is that the states most behind in their payments will ever make up their financial failures. The system of quotas and requisitions—whether for money or men—is, from any perspective, the cause of weakness in the Union, and of inequality and injustice among its members.

The principle of equal voting rights among the States is another problematic feature of the Confederation. Every idea of fairness and every standard of just representation condemn this principle, which gives Rhode Island as much power as Massachusetts, Connecticut, or New York, and Delaware the same voice in national matters as Pennsylvania, Virginia, or North Carolina. Its effect contradicts the basic principle of republican government, which says the majority’s will should prevail. Some may argue that sovereign states are equal, and that a majority of votes among States is a majority of confederated America. But such reasoning will never overcome simple justice and common sense. In fact, this “majority of States” can represent a small minority of Americans;(3) and two thirds of the people of America could not long be persuaded, by such artificial distinctions and shallow arguments, to let their interests be managed or controlled by one third. The larger States would eventually resist being governed by the smaller. To accept such a loss of political importance would mean not only giving up ambition but also abandoning the desire for equality. It’s unrealistic to expect the first, and unfair to require the last. The smaller States, since their wellbeing especially depends on union, should willingly give up a claim which, if not abandoned, would destroy the Union.

Some may object that not seven but nine States—or two thirds—must approve the most important decisions; and argue that nine States would always represent a majority of the Union. But this doesn’t fix the unfairness of equal voting for States of vastly different size and population; and it is also incorrect, since there are nine States that together have less than a majority of the population;(4) and it’s legally possible for these nine to make the decision. Moreover, some important issues are decided by a simple majority; and for others, it’s debatable whether a vote of seven States is enough, which could make this weakness apply to critical interests. In addition, there may be more States in the future, with no plan in place for increasing the number of votes accordingly.

But that’s not the end: what may at first seem like a remedy is, in truth, a danger. Giving a minority the power to block the majority (which is always the case when more than a simple majority is needed) means letting the will of the smaller group dominate the larger. In Congress, when a few States were absent, it often resembled the Polish diet, where a single vote could halt all proceedings. At times, the tiny fraction of the Union represented by Delaware and Rhode Island—about one-sixtieth—has been able to completely block action. This is one of those theoretical ideas that, in practice, works the opposite of what is intended. The requirement of near-unanimity in public bodies is supposed to provide security. In reality, it hinders administration, destroys the government’s strength, and lets the whims or tricks of a small, unruly, or corrupt group override the thoughtful decisions of a respectable majority. In national emergencies, when good or bad government is most crucial, prompt action is often needed. Government business must continue one way or another. If a stubborn minority can control what the majority thinks is the best way to proceed, then, so something gets done, the majority must go along with the minority; thus, the will of the few overrides the many and guides national decisions. This leads to endless delays; constant negotiation and scheming; and shameful compromises of the public good. And even then, it is fortunate if compromises can be reached—for sometimes agreement is impossible, and then government actions may be dangerously delayed or even entirely blocked. The need for so many votes frequently leaves government inactive. Its state is always one of weakness and often on the verge of anarchy.

It is easy to see that such a principle gives more opportunity for foreign corruption, as well as for domestic factions, than one that lets the majority rule—even though some claim the opposite. This mistake comes from not paying enough attention to the harm that can result from blocking government at critical times. When the Constitution requires a great number of participants to pass a national measure, we tend to think all is safe, since nothing bad can be done; but we forget how much good may be prevented, and how much harm can occur, by stopping what is needed and keeping things in an unfavorable state.

Suppose, for example, we were engaged in a war alongside one foreign nation against another. Suppose our situation made peace necessary, but the interests or ambitions of our ally led him to continue the war, with motives that would justify us in seeking separate terms. In such a situation, our ally would clearly find it much easier—through bribery and intrigue—to prevent the government from making peace when two-thirds of all votes were required for such an action, than if a simple majority was enough. In the first case, he would need to corrupt a smaller number; in the latter, a larger one. By the same reasoning, it would be much easier for a foreign power we were at war with to confuse our decision-making and hinder our efforts. Similarly, in commerce, we could face comparable problems. A nation with whom we had a commercial treaty could much more easily prevent us from forming ties with its commercial rival, even if such a connection was highly beneficial to us.

Evils of this kind should not be dismissed as imaginary. One of the weaknesses of republics—despite their many advantages—is that they provide too easy an entry for foreign corruption. A hereditary monarch, though often willing to risk his subjects for his ambitions, has such a strong personal stake in the government and the nation's reputation that it is difficult for a foreign power to offer him sufficient compensation to betray his country. History has shown few examples of such royal treachery, though there have been many of other kinds.

In republics, individuals who rise from the general population—elected by their fellow citizens to positions of great importance—may find rewards for betraying their trust that, to anyone lacking superior integrity, could outweigh their interest in the common good and override their duty. This explains why history provides so many distressing examples of foreign corruption thriving in republican governments. We've already discussed how much this contributed to the downfall of ancient republics. It's well known that the deputies of the United Provinces have, on various occasions, been bought by agents of neighboring kingdoms. The Earl of Chesterfield (if I recall correctly), in a letter to his court, hinted that his success in an important negotiation depended on securing a major’s commission for one of those deputies. In Sweden, political parties were repeatedly bought by France and England so openly and shamelessly that it caused widespread outrage in the nation, and was a primary reason why the most limited monarch in Europe became, in a single day—without unrest, violence, or resistance—one of the most absolute and unchecked.

Another flaw that crowns the defects of the Confederation must still be mentioned: the lack of a judiciary. Laws are meaningless without courts to interpret and define their true meaning and application. The treaties of the United States, for them to have any force, must be considered part of the law of the land. Their precise meaning, especially as it relates to individuals, must, like all other laws, be determined by judicial decisions. To ensure these decisions are uniform, cases should ultimately go to a single SUPREME TRIBUNAL. This tribunal should be established by the same authority that makes the treaties themselves. Both elements are essential. If each State has a court of final authority, there could be as many final decisions on the same issue as there are courts. People's opinions vary endlessly. We often see not only different courts but even judges on the same court disagreeing. To avoid the confusion that would naturally arise from the conflicting decisions of multiple independent courts, every nation has found it necessary to have one court above the rest, with general oversight to establish and declare a uniform rule of civil justice in the final instance.

This need is even greater when a government is arranged so that the laws of the whole may be undermined by the laws of the parts. If local courts have the final word, there will not only be disagreements due to differing opinions but also risks of bias from local interests and interference from local regulations. Whenever such interference occurred, one could expect that special local laws would be favored over the general laws; nothing is more typical among officials than to defer to the authority that granted them their positions.

Currently, under the existing Constitution, treaties of the United States are open to violations by thirteen different legislatures and as many courts of ultimate authority acting under those legislatures. The faith, reputation, and peace of the entire Union are thus always at the mercy of the prejudices, passions, and interests of every member State. Can foreign nations be expected to respect or trust such a government? Can the people of America be expected to continue risking their honor, happiness, and safety on such shaky ground?

In this review of the Confederation, I have focused on its most serious defects, leaving aside lesser flaws that have nevertheless rendered much of its intended power ineffective. By now, it should be clear to any thoughtful person willing to let go of preconceived notions that this system is so fundamentally flawed and unsound that it cannot be improved except by completely changing its main characteristics.

Even the structure of Congress is quite unfit for the exercise of the powers that must be vested in the Union. A single assembly might be adequate for the weak and limited authority previously given to the federal government, but it contradicts all principles of good government to entrust it with the additional powers that even moderate opponents of the proposed Constitution admit should belong to the United States. If the new plan is not adopted, and if the necessity for Union can withstand the ambitions of those seeking personal gain from its collapse, we will likely proceed by adding more powers to Congress as it currently exists. Either this system, because of its inherent weakness, will fall apart despite misguided attempts to reinforce it; or, driven by necessity, we will keep increasing its powers until we concentrate all the most important elements of sovereignty in one body, creating for our descendants one of the worst forms of government mankind has ever devised. In reality, we would enact the very tyranny that the opponents of the new Constitution claim, or pretend, to fear.

Another major weakness of the current federal system is that it was never ratified by the PEOPLE. Lacking a real foundation beyond the consent of the separate state legislatures, it has regularly faced complex questions about the validity of its powers and, in some cases, has given rise to the absurd concept of legislative repeal rights. Some have argued that because a state ratified the federal system by its own law, it could also repeal it by rescinding that law. As outrageous as it may be to claim that a PARTY to a COMPACT can revoke it unilaterally, this theory has had some respectable defenders. The mere possibility of such a theory shows why we must root our national government deeper than the authority of simply delegated powers. The foundation of American government should be the CONSENT OF THE PEOPLE. The power of the nation ought to flow directly from that pure, original source of all legitimate authority.

PUBLIUS

1. This, as nearly as I can recall, was the sense of his speech when introducing the last bill.

2. Encyclopedia, article “Empire.”

3. New Hampshire, Rhode Island, New Jersey, Delaware, Georgia, South Carolina, and Maryland together make up a majority of the States, but they do not contain one third of the population.

4. If you add New York and Connecticut to the previous seven, they would still be less than a majority.

## FEDERALIST No. 23. The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union

### From the New York Packet. Tuesday, December 18, 1787.

HAMILTON

To the People of the State of New York:

The need for a Constitution at least as energetic as the one proposed, for the preservation of the Union, is the point which we must now examine.

This inquiry will naturally divide into three areas—the objectives the federal government must provide for, the amount of power necessary to achieve these objectives, and the individuals or bodies upon whom this power should operate. Its distribution and organization will be better addressed in the following section.

The main purposes to be served by union are these: the common defense of the members; the preservation of public peace, both against internal upheaval and external attacks; the regulation of commerce with other nations and among the States; and the management of our political and commercial relationships with foreign countries.

The powers essential to common defense are these: to raise armies; to build and equip fleets; to set rules for governing both; to direct their operations; to provide for their support. These powers should exist without limitation, BECAUSE IT IS IMPOSSIBLE TO FORESEE OR DEFINE THE EXTENT AND VARIETY OF NATIONAL EMERGENCIES, OR THE CORRESPONDING EXTENT AND VARIETY OF THE MEANS WHICH MAY BE NECESSARY TO ADDRESS THEM. The threats to national safety are infinite, and for this reason no constitutional restrictions can be wisely imposed on the power tasked with its care. This power should be as broad as all the possible combinations of such circumstances; and should be under the control of the same authorities assigned to oversee the common defense.

This is one of those truths that, to a fair and unbiased mind, is self-evident; it may be obscured, but cannot be made clearer by argument or reasoning. It rests on principles as simple as they are universal: the MEANS must be proportioned to the END; those responsible for achieving any END must have the MEANS by which it is to be achieved.

Whether there should be a federal government charged with common defense is at first open for discussion; but once it is decided in the affirmative, it follows that that government must be given all the powers necessary to fully execute its trust. Unless it can be shown that the circumstances affecting public safety can be reduced to certain fixed limits; unless the opposite of this position can be fairly and rationally contested, it must be accepted, as a necessary result, that there can be no limitation on the authority that is to provide for the defense and protection of the community, in any aspect essential to its effectiveness—that is, in any aspect essential to the CREATION, DIRECTION, or SUPPORT of NATIONAL FORCES.

Although the current Confederation has proven to be flawed, this principle appears to have been fully recognized by its creators; though they have not made suitable or enough provision for its implementation. Congress has unlimited discretion to make requests for men and money; to govern the army and navy; to direct their operations. As their requests are made constitutionally binding on the States, which are in fact under the most solemn obligations to provide the required supplies, the clear intention was that the United States should command whatever resources they deemed necessary for the “common defense and general welfare.” It was assumed that awareness of their true interests, and a sense of good faith, would be sufficient assurances for the reliable performance of each member's duty to the federal authority.

However, experience has proven this expectation to be mistaken and unrealistic; and the observations made previously, I believe, will have convinced the impartial and insightful that there is an absolute need for a complete change in the foundations of the system; that if we truly wish to give the Union strength and longevity, we must give up the futile idea of legislating to the States as collective bodies; we must extend the laws of the federal government to individual American citizens; we must abandon the flawed system of quotas and requisitions, as both impractical and unjust. The outcome of all this is that the Union must be given full power to draft troops; to build and equip fleets; and to raise the funds required for creating and supporting an army and navy, in the usual ways employed by other governments.

If the conditions of our country require a composite government rather than a simple one, a confederate instead of a single government, then the key issue to resolve is to separate the OBJECTS, as much as possible, which belong to the different branches or departments of power; giving each the most comprehensive authority to accomplish its assigned purposes. If the Union is to serve as guardian of the common safety, and fleets, armies, and funds are required for this role, the government of the Union must be empowered to pass all laws and create all regulations related to these matters. The same applies to commerce, and any other matter within its jurisdiction. For justice between citizens of the same State, local governments must have all the powers associated with this role, and with every other matter within their specific responsibility and direction. Failing to grant, in each case, enough power to achieve the ends is to violate the most basic rules of wisdom and responsibility, and carelessly place the nation's great interests in hands incapable of managing them with strength and success.

Who is as likely to make appropriate provisions for public defense as the body that is entrusted with public safety; which, as the center of information, will best understand the scale and urgency of the dangers that threaten; which, as representative of the WHOLE, will feel the greatest investment in every part's preservation; which, because of its duty, will be keenly aware of the need for proper effort; and which, through its authority across the States, can alone ensure uniformity and coordination in the plans and measures needed to guarantee common safety? Is it not obviously inconsistent to assign the federal government responsibility for general defense, while leaving the States with the EFFECTIVE powers needed for its provision? Would not lack of cooperation inevitably result? And would this not produce weakness, disorder, unjust and uneven distribution of the burdens and hardships of war, and an unnecessary and intolerable increase in expenses? Have we not already seen undeniable evidence of this during the recently completed revolution?

Every view of the subject, considered by sincere seekers of truth, will show that it is both unwise and dangerous to deny the federal government full authority over all the matters assigned to its management. It certainly deserves the most careful and constant attention from the people to ensure that it is structured so as to be safely trusted with these necessary powers. If any proposed plan, now or in the future, does not meet this test on calm examination, it should be rejected. A government whose constitution makes it unfit to hold all the powers a free people should grant to a government is an unsafe and improper guardian of the NATIONAL INTERESTS. Wherever these interests can properly be assigned, the necessary powers can be safely given as well. This is the true conclusion of all sound reasoning on the topic. The opponents of the plan proposed by the convention should have restricted themselves to proving that the internal organization of the proposed government was unworthy of the people's trust. They should not have indulged in inflammatory speeches and vague criticisms about the scope of the powers. The POWERS are not too extensive for the OBJECTS of federal administration, or, in other words, for managing our NATIONAL INTERESTS; nor can any convincing argument show they are excessive. If it is true, as some writers on the other side suggest, that the difficulty comes from the very nature of the problem, and that the country is too large to form a government with powers that can safely be trusted, then that would mean we should limit our goals and create separate confederacies, which would operate within more manageable boundaries. For it would be absurd to continually entrust the government with the most vital national interests, while not daring to give it the powers necessary to manage them properly and effectively. We should not try to reconcile contradictions, but instead clearly choose a rational option.

I believe, however, that no one can prove a single, unified system is unworkable. I am greatly mistaken if anything of substance has been put forward in that direction; and I flatter myself that the comments made in these papers have shown the opposite view as clearly as anything can be at this point in history and experience. In any case, it must be obvious that the supposed difficulty caused by the country's size is actually the strongest argument in favor of a strong government; for nothing else could possibly preserve the Union of such a large nation. If we follow the beliefs of those who oppose the proposed Constitution as our political standard, we will inevitably confirm the gloomy predictions that a national system cannot work across the entire current Confederacy.

PUBLIUS

## FEDERALIST No. 24. The Powers Necessary to the Common Defense Further Considered

### For the Independent Journal. Wednesday, December 19, 1787

HAMILTON

To the People of the State of New York:

Of the powers proposed to be granted to the federal government regarding the creation and control of the national military forces, I have encountered only one specific objection, which, if I understand correctly, is this: that there has not been proper provision made against the existence of standing armies during peacetime; an objection which I will now try to show is based on weak and unsubstantial grounds.

It has indeed been presented in the most vague and general terms, supported only by bold claims, without any real argument; without even the support of theoretical opinions; contrary to the practice of other free nations and to the common view of America, as expressed in most current constitutions. The truth of this statement will become clear as soon as we remember that this objection is centered on a supposed need to limit the LEGISLATIVE authority of the nation concerning military establishments; a principle that is unheard of, except in one or two of our State constitutions and rejected in all the others.

A newcomer to our politics, reading our newspapers at this time without having first seen the plan reported by the convention, would likely come to one of two conclusions: either that it contains a specific requirement that standing armies be maintained during peacetime, or that it gives the EXECUTIVE the full power to raise troops, without any form of legislative oversight.

If he were then to read the plan itself, he would be surprised to find that neither is true; that the entire power to raise armies belongs to the LEGISLATURE, not the EXECUTIVE; that this legislature will be a popular body, made up of representatives of the people regularly elected; and that rather than a requirement for standing armies, there is actually an important limitation on legislative discretion: the clause that forbids appropriating money for the support of an army for more than two years at a time—a precaution that, upon closer examination, will be seen as significant protection against maintaining troops without clear necessity.

Disappointed in his first guess, that person would probably look further. He would naturally think to himself, it is impossible that all this emotional and dramatic criticism is without some reason. Surely this people, so protective of their liberties, have, in all the earlier constitutional models they have made, included the most clear and strict safeguards on this point, the omission of which in the new plan has created all this concern and protest.

If, under this impression, he proceeded to review the various State constitutions, how great would be his disappointment to find that ONLY TWO of them(1) contained an explicit prohibition against standing armies in peacetime; that the other eleven had either remained completely silent on the subject or had expressly admitted the right of the Legislature to authorize their existence.

Still, he would be convinced that there must be some reasonable basis for the concerns being raised on this issue. He could hardly imagine, as long as any source of information remained unexamined, that it was nothing more than a test of public gullibility, prompted either by a deliberate intent to deceive or by a zeal too heated to be sincere. He might think that the safeguards he was seeking could be found in the original compact between the States. There, at last, he would expect to find the answer. Surely, he would reason, the existing Confederation must have the clearest provisions against military establishments in peacetime; and that any departure from this precedent on such a vital point was what caused the discontent influencing these political advocates.

If he now turned to a thorough and careful review of the Articles of Confederation, his astonishment would only grow—and would be tinged with indignation—at discovering that these articles, instead of containing the prohibition he expected, and despite having carefully limited the authority of the State legislatures on this matter, had placed not a single restriction on the power of the United States. If he were a man of quick sensibility or passionate temperament, he could no longer avoid seeing these outcries as dishonest tricks employed by a self-serving and unprincipled opposition to a plan that deserved at least a fair and candid hearing from all true patriots. How else, he would ask, could the authors of such criticism be moved to make so much noise about a point on which the proposed plan appears to follow the prevailing sentiment of America, as shown by its different governments, and even adds a strong safeguard that none of them had adopted? If, in contrast, he were a calm and reasonable man, he might sigh over the frailty of human nature, and lament that in a matter so crucial to the happiness of millions, the real merits of the issue were clouded and confused by tactics that obstruct a fair and sound decision. Even such a man could not help but notice that this sort of conduct appears to be a deliberate attempt to mislead the public by stirring up their fears, rather than persuading them through intelligent argument.

But no matter how little support this objection has, even among our own precedents, it may still be useful to more closely examine its inherent merits. A careful consideration will show that restrictions on the legislature’s discretion regarding military establishments in peacetime would be inappropriate to impose—and if imposed, would likely not be followed due to the needs of society.

Though a wide ocean separates the United States from Europe, there are several reasons warning us not to become overly confident or complacent. On one side and extending far inland, there are growing settlements under British rule. On the other side, and coming to meet the British settlements, lie colonies and territories controlled by Spain. This arrangement, along with the proximity of the West Indies—belonging to these two nations—creates a shared interest between them in their American holdings as they relate to us. The Native tribes on our Western frontier should be considered our natural enemies—and their natural allies—because they have the most to fear from us, and the most to gain from the British and Spanish. Advances in navigation have made distant countries almost like neighbors. Britain and Spain are major naval powers in Europe. It would not be improbable for them to unite their interests in the future. Additionally, family ties between France and Spain are growing more irrelevant as time passes. Politicians have always noted that blood ties are unreliable and weak links for political alliances. These combined circumstances warn us not to become too optimistic about our security.

Before the Revolution, and ever since the peace, it has always been necessary to keep small garrisons along our Western frontier. No one can doubt that these will continue to be essential, even if only to protect against attacks and theft by the Native tribes. These garrisons must either be staffed by occasional militia detachments or by permanent units paid by the government. The first option is not practical, and even if it were, it would be harmful. The militia would not tolerate being taken from their jobs and families to do such burdensome duty during times of peace. Even if they could be persuaded or forced to serve, the resulting higher costs for frequent rotations, coupled with the loss of labor and disruption of people’s livelihoods, would be decisive arguments against the plan. It would be as costly and damaging to the public as it would be ruinous to private citizens. The second option—of maintaining permanent troops paid by the government—amounts to having a standing army in peacetime, albeit a small one, but no less real for its size. This straightforward consideration shows the inappropriateness of prohibiting such measures in the Constitution, and the necessity of leaving the matter to the sound judgment and prudence of the legislature.

As we grow stronger, it is likely—indeed, almost certain—that Britain and Spain will increase their military forces in the areas neighboring us. If we aren’t willing to remain exposed and defenseless to their insults and encroachments, we will find it necessary to expand our frontier garrisons in proportion to the potential threats against our Western settlements. There are and will continue to be certain outposts, whose possession gives control over large regions of land and could facilitate future invasions. Some of those posts are also vital to the trade with Native nations. Can anyone believe it would be wise to leave such important places open to sudden capture by either of these powerful neighbors? Acting otherwise would mean abandoning all prudent principles of policy.

If we aspire to be a commercial nation—or even just secure on our Atlantic coast—we must try to establish a navy as soon as possible. This requires dockyards and arsenals; and for their defense, fortifications—and probably garrisons. When a country is powerful at sea and can defend its dockyards with its fleets, garrisons are no longer needed for that purpose. But with a new or developing navy, modest garrisons will almost certainly be a necessary protection against raids aimed at destroying the arsenals and shipyards, and sometimes even the fleet itself.

PUBLIUS

1 This statement is based on the published collection of State constitutions. Pennsylvania and North Carolina are the two that contain the prohibition in these words: “As standing armies in time of peace are dangerous to liberty, THEY OUGHT NOT to be kept up.” This is really more a WARNING than a BAN. New Hampshire, Massachusetts, Delaware, and Maryland each have a clause in their bill of rights saying, “Standing armies are dangerous to liberty, and ought not to be raised or kept up WITHOUT THE CONSENT OF THE LEGISLATURE”; which formally recognizes the authority of the Legislature. New York has no bill of rights, and its constitution does not mention the matter. No bill of rights is attached to the constitutions of the other States, except as mentioned above, and their constitutions are equally silent. However, I am told that one or two States have bills of rights not included in this collection, but that those also acknowledge the legislative right in this area.

## FEDERALIST No. 25. The Same Subject Continued (The Powers Necessary to the Common Defense Further Considered)

### From the New York Packet. Friday, December 21, 1787.

HAMILTON

To the People of the State of New York:

IT MAY perhaps be argued that the goals mentioned in the previous essay should be provided for by the State governments, under the Union’s direction. But this, in reality, would invert the primary principle of our political association, because it would effectively transfer responsibility for the common defense from the federal authority to the individual States—a project that would be oppressive to some, dangerous to all, and damaging to the Confederacy.

The British, Spanish, and Indian territories near us do not only border specific States, but surround the Union from Maine to Georgia. Therefore, the danger, though greater in some places than others, is common to all. The methods employed to guard against it should likewise be planned by common councils and funded from a common treasury. Some States, by their location, are more directly exposed. New York is in this group. If responsibility were separated by State, New York would have to bear the full cost of the defenses necessary for her immediate safety as well as the eventual protection of her neighbors. This would be neither fair to New York nor safe for the other States. Many problems would accompany such an arrangement. The States responsible for the necessary defenses would be, for a long time, neither able nor willing to bear the burden of truly adequate preparations. The security of all would then depend on the frugality, lack of planning, or poverty of a few. If the resources of those States grew and their defenses increased in kind, the other States would quickly become alarmed, seeing that the Union’s entire military force was now controlled by two or three of its members—most likely also the most powerful. They would each want a counter-balance, and excuses for one could be easily invented. In this situation, military forces, fed by mutual distrust, would probably outgrow what is reasonable or necessary; and if controlled separately by the States, such establishments could threaten or destroy national authority.

We have already seen reasons to think that State governments would likely compete with the federal one, based on the natural desire for power; and that in any contest between the national government and a State, the people would most often side with their local government. If, in addition to this enormous advantage, the States each possessed their own separate and independent military forces, this would create too much temptation and too easy an opportunity for them to challenge—or eventually overthrow—the Union’s constitutional authority. Conversely, the people’s liberty would be less protected under this scenario than if the national forces were fully under the control of the national government. If an army is considered a dangerous instrument of power, it is better for it to be overseen by authorities whom the people are most likely to question and scrutinize, rather than by those whom they are least inclined to suspect. For history has undoubtedly shown that the populace is most in danger when the means to violate their rights are held by those they suspect the least.

The authors of the current Confederation, fully understanding the danger to Union from States maintaining their own military forces, have explicitly forbidden them from having either ships or troops, unless Congress gives its consent. The reality is that a federal government and State military establishments are as incompatible with each other as a dependable federal treasury is with the quotas and requisitions system.

There are other perspectives, in addition to those already discussed, that further show why limiting the national legislature’s discretion would be inappropriate. The goal of the objection raised before is to prohibit standing armies in peacetime—though we have never been told how far that prohibition is supposed to extend: does it forbid raising armies as well as KEEPING THEM UP during times of peace or not? If it is limited to the latter, it has no clear meaning and will fail to have its intended effect. Once armies are raised, what counts as “keeping them up” in violation of the Constitution? How much time is needed to say a violation has occurred—a week, a month, a year? Or should we say they can be kept as long as the danger that prompted their creation remains? This would admit that they might be maintained IN TIMES OF PEACE in response to any looming or possible threat, which would stray from the literal meaning of the prohibition and open the door to broad interpretations. Who decides if the danger continues? Clearly, the national government must decide, and so it would ultimately come to this: the national government, to guard against perceived threats, could not only raise troops but also keep them in place as long as they believed the safety or peace of the country was at any risk. It’s easy to see how such broad discretion would make it simple to circumvent the spirit of the rule.

The supposed usefulness of such a rule can rest only on the supposed likelihood—or at least possibility—of a conspiracy between the executive and legislative branches to seize more power. If this ever happened, how easy it would be to invent reasons for concern! Hostility from Native Americans, encouraged by Spain or Britain, could always serve as a threat. Provocations could even be created toward foreign nations, then defused by timely concessions. If it is truly reasonable to suppose such collusion could happen—and that success was possible—the army, once raised for any reason or under any pretext, could then be used to carry out the plan.

If, to avoid this result, it were decided to extend the prohibition to the RAISING of armies in peacetime, the United States would then present the most extraordinary spectacle the world has ever seen: a nation, by virtue of its own Constitution, unable to prepare for its defense until it is actually invaded. Since the custom of a formal declaration of war has recently fallen out of use, the government would have to wait for the enemy's presence within our territory before it could legally begin recruiting troops to protect the State. We would have to suffer the blow before we could even prepare to respond. All those policies by which nations anticipate distant danger and act before the storm arrives would be forbidden, as contrary to the true principles of a free government. We would be forced to leave our property and liberty at the mercy of foreign aggressors, inviting them by our vulnerability to seize an unprotected and defenseless prey—all because we fear that our own elected leaders, subject to our will, might, through abuse of the powers necessary to preserve liberty, endanger that very liberty.

Here, I expect someone will say that the country’s militia is its natural defense and would always be adequate for national protection. This doctrine, in essence, almost cost us our independence. It cost the United States millions that might have been saved. The facts from our own experience, which warn us against relying solely on the militia, are too recent for us to be deceived by such suggestions. The steady efforts of war against a professional and disciplined army can only be matched successfully by a similarly organized force. Considerations of cost, as well as of stability and strength, support this position. The American militia, during the recent war, displayed courage on many occasions and earned lasting honor; but even the bravest among them know that their efforts alone were not enough to secure the nation’s freedom, however significant and valuable those efforts were. War, like most things, is a science learned and refined through diligence, perseverance, time, and practice.

All extreme policies, being contrary to the usual and proven course of human affairs, ultimately defeat their own purpose. Pennsylvania currently illustrates this truth. The Bill of Rights in that State declares that standing armies are dangerous to liberty and ought not to be maintained during peace. Yet, Pennsylvania, even during a time of deep peace, resolving partial disturbances in just a few counties, has decided to raise a body of troops, and will likely maintain them as long as any threat to public peace remains. Massachusetts provides another lesson, though for a different reason. That State (without waiting for Congress’s approval, as required by the Articles of Confederation) was forced to raise troops to suppress a domestic uprising, and still keeps a force on payroll to prevent a recurrence. The specific constitution of Massachusetts presented no barrier to this action; but this example helps remind us that cases are bound to arise under our government, as under others, when a military force during peacetime is essential for the society’s security, and it is therefore unwise to restrict the legislature’s discretion in this area. It also teaches us, as it concerns the United States, just how little the rights of a weak government tend to be respected, even by its own people. And it further shows us the futility of relying on written safeguards when faced with true public necessity.

A basic rule of the Lacedaemonian commonwealth dictated that the post of admiral should never be given to the same person twice. After their Peloponnesian allies suffered a severe naval defeat by the Athenians, they demanded Lysander—who had previously served successfully in that role—to command the combined fleets. The Lacedaemonians, to satisfy their allies and yet seem to keep to their longstanding traditions, resorted to the flimsy pretense of giving Lysander the real authority of an admiral, but under the title of vice-admiral. I select this example from among many that could be cited to further establish the truth, already shown by domestic examples: nations rarely follow rules and principles that go directly against society’s needs. Wise leaders are careful about putting the government in chains with restrictions that cannot possibly be observed, because they understand that every breach, even when justified by necessity, undermines the essential respect that rulers should have for the nation’s constitution, and creates a precedent for future violations—even when the same urgent need is not present or is less clear.

PUBLIUS

## FEDERALIST No. 26. The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered.

### For the Independent Journal. Saturday, December 22, 1788

HAMILTON

To the People of the State of New York:

IT WAS hardly to be expected that, following a popular revolution, people would stop at just the right balance that marks the healthy boundary between POWER and PRIVILEGE, combining governmental strength with the protection of individual rights. Failing to strike that delicate and crucial balance is a main source of the challenges we face; and if we are not careful to avoid repeating the same error in our current efforts to improve our system, we may end up drifting from one impractical scheme to another, testing change after change, and never making any real improvement.

The idea of restraining legislative power in matters of national defense is one of those refinements born of a passion for liberty that is more enthusiastic than well-informed. Even so, it has not gained wide support so far; even here, where it first arose, only Pennsylvania and North Carolina have adopted it in any form, while every other State has refused it, wisely realizing that trust must be placed somewhere. The need to do so is part of delegating power, and it is better to risk an abuse of that trust than to hinder government operations and put public safety at risk through ill-advised restrictions on the legislative authority. On this point, the critics of the proposed Constitution oppose what America as a whole has decided; and instead of learning from experience and correcting earlier extremes, they seem intent on leading us into even more dangerous and excessive ones. As if government under the old system was too strong or too inflexible, the measures they propose are designed to weaken or relax it, by means that, elsewhere, have been rejected. It may be said, without unfair criticism, that if their principles on various issues were to become widely adopted, they would make Americans unfit for any system of government. But such a danger is unlikely. Americans are too perceptive to be reasoned into anarchy. And I believe experience has taught the public very clearly that a more energetic government is essential for the community’s health and prosperity.

It may help to briefly mention the origin and development of the idea aimed at forbidding military establishments in peacetime. In theory, it might spring from abstract reflection on the nature and tendencies of such institutions, reinforced by historical examples from different times and countries; but as a general feeling, it must be traced to the habits of thought passed down from the nation from which most of our people originate.

In England, for a long time after the Norman Conquest, the king’s power was nearly unlimited. Little by little, barons and then the people themselves chipped away at royal privileges until most of the king’s greatest powers faded. But it was only after the Revolution of 1688, which brought the Prince of Orange to the British throne, that English liberty fully triumphed. As a feature of the king’s authority to make war—an accepted royal prerogative—Charles II had kept, by his own authority, a force of 5,000 regular troops during peacetime. James II increased this number to 30,000, funded by his civil list. At the Revolution, to eliminate such a dangerous power, it became a provision of the Bill of Rights that “the raising or keeping a standing army within the kingdom in time of peace, UNLESS WITH THE CONSENT OF PARLIAMENT, was against law.”

At the peak of England’s devotion to liberty, no safeguard against the danger of standing armies was thought necessary beyond prohibiting their establishment solely by the executive. The patriots behind that revolution were moderate and well-informed; they never considered limiting the legislature’s freedom. They knew that some troops for guards and garrisons were essential; that no fixed limits could be set for national emergencies; that governmental power sufficient for all possible situations had to be granted somewhere: and that by giving the legislature such power, they had gone as far as was compatible with public safety.

From this source, Americans may be said to have inherited a traditional suspicion about standing armies in peacetime. The circumstances of the American Revolution heightened sensitivity to all matters related to protecting popular rights, sometimes making our passion for liberty stronger than the healthy temperature of the political body allowed. The attempts by two States to restrict the legislature’s authority over military establishments are examples of this tendency. The ideas that made us wary of the hereditary ruler’s powers were, by an excessive zeal, extended to our own elected representatives. Even in some States that did not adopt this mistake, we see unnecessary statements declaring that standing armies should not exist in peacetime WITHOUT THE CONSENT OF THE LEGISLATURE. I call those statements unnecessary, because the reason for similar wording in the English Bill of Rights doesn’t apply under American constitutions. Under our State constitutions, the power to raise armies couldn’t possibly be understood to reside anywhere but in the legislatures themselves; so it is pointless, if not foolish, to say that something must not be done without the consent of a body which alone can do it. Accordingly, in some of these constitutions—including that of New York, which has been rightly praised as one of the best forms of government in this country—there is no mention of the subject at all.

Notably, even in the two States that considered banning military establishments in times of peace, their language is more of a caution than a command. It does not declare that standing armies SHALL NOT BE maintained, but that they OUGHT NOT to be maintained, during peace. This vague language shows a struggle between suspicion and insight: wanting at all costs to prevent such establishments, but sensing that a total ban would be foolish and unsafe.

Can anyone doubt that, whenever public affairs made a departure from such a provision necessary, the legislature would interpret it as a mere warning, bending it to the State’s needs or perceived needs? Let the example of Pennsylvania already mentioned answer that question. So what, then, is the value of such a provision if it stops working the moment people choose to ignore it?

Let’s compare the effect of this kind of provision with the one in the new Constitution, which limits military funding authorizations to two years at a time. The old policy, by aiming too high, achieves nothing; the new policy, avoiding rash extremes and being fully compatible with proper national security, will have effective and positive results.

The United States legislature will be REQUIRED, because of this law, to discuss at least every two years whether to maintain a military force; they must reach a new decision on the matter and formally vote in front of the people they represent. They are NOT PERMITTED to give the executive department permanent funds for an army, even if they unwisely trusted it that much. Given that some degree of party spirit can be expected in any political body, there will always be members of Congress ready enough to criticize the actions and motives of the majority. The subject of supporting a military will always be suited for public debate. Every time the issue comes up, the opposition will focus national attention on it; and if the majority ever tries to go too far, the public will be warned and able to take precautions. Beyond partisan checks in Congress, the State legislatures, always vigilant and sometimes suspicious guardians of citizens’ rights against possible federal overreach, will certainly stay alert to what the national rulers are doing, and will sound the alarm to the people, acting as the VOICE, and, if necessary, the ARM of public dissatisfaction.

Plots to undermine the freedom of a large community REQUIRE TIME to develop and carry out. An army big enough to threaten civil liberty could only be formed gradually by repeated increases—requiring not just a temporary alliance between the legislature and executive, but a long-term conspiracy maintained over time. Is it likely such a conspiracy would happen at all? Is it likely it could continue across all the changes brought by biennial elections in both legislative houses? Can we believe every new member of the House or Senate would instantly become a traitor to his district and country? Is it possible not one person with the insight to spot such a blatant plot—or the courage to warn his constituents—would be present? If such assumptions are reasonable, then it would be best to do away with all delegated powers. The people should simply reclaim all authority and split into as many States as there are counties, so they can run every matter themselves.

If such suppositions could even be reasonably made, still, concealing such a plan for any time at all would be impossible. It would be revealed simply by the act of increasing the army to such a large size during a period of complete peace. What plausible reason could be offered, in a country like this, for such tremendous increases in military force? It is impossible that the people could be long deceived; once discovered, the plan and those behind it would quickly be destroyed.

It has been argued that the provision limiting the appropriation of money for supporting an army to two years would be useless, because the Executive, once in control of a force large enough to intimidate the people into submission, could find resources within that very force sufficient to get by without supplies from the legislature. But again the question arises: on what grounds could the Executive gain control of such a large force during peacetime? If it was created in response to domestic insurrection or foreign war, then it would not fit the objection’s principle; for this objection is strictly against keeping up troops during peace. Few people would seriously argue that military forces should not be raised to suppress a rebellion or defend against invasion; and if, under such circumstances, defending the community required an army so large as to threaten its liberty, this would be one of those disasters for which there is neither prevention nor cure. No form of government could safeguard against it; even a simple alliance for mutual defense could result in the same, if the allies had to form a joint army for their common defense.

However, such an evil is far less likely to happen in a unified state than in a divided one; in fact, it can be safely said that it is extremely unlikely to occur in the latter situation. It is difficult to imagine dangers so great besetting the whole Union as to require a force large enough to endanger our liberties, especially if we remember the additional support of the militia, which should always be considered a valuable and powerful backup. But if disunion were to occur (as has been shown elsewhere), such dangers would not only become probable but nearly unavoidable.

PUBLIUS

## FEDERALIST No. 27. The Same Subject Continued (The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered)

### From the New York Packet. Tuesday, December 25, 1787.

HAMILTON

To the People of the State of New York:

IT HAS been claimed, in various ways, that a Constitution like the one proposed by the convention cannot operate without using military force to enforce its laws. However, like most other criticisms raised on that side, this is just a general claim, unsupported by any specific or clear explanation. As far as I can tell, the opponents’ real point seems to be based on the assumption that people will resist federal authority when it comes to domestic matters. Setting aside any debate about the accuracy of the distinction between “internal” and “external,” let us ask: what reason is there to believe people would resist? Unless we suppose at the same time that the general government will be worse run than the State governments, there is no reason to assume that people would feel ill-will, disaffection, or opposition. In general, I think it’s safe to say that people’s trust and obedience to a government will usually reflect its good or bad administration. Admittedly, there are exceptions to this rule; but these exceptions depend so much on chance events that they have no real link to the actual merits or flaws of a constitution. These things must be judged by general principles and maxims.

In these essays, several reasons have been given to suggest that the general government will be better run than the individual State governments. Chief among them is that having a larger sphere of elections gives people more options and greater freedom of choice; that through the State legislatures—which are select bodies—and which will choose members of the national Senate, there’s reason to expect that this branch will usually be filled with extra care and sound judgment; that these factors promise greater knowledge and wider understanding in national councils, and that such a body will be less likely to be influenced by factions, or be swayed by the passing moods or temporary biases which, in smaller societies, often taint public decision-making, cause injustices and oppression of some citizens, and create schemes that may satisfy short-term desires but ultimately cause widespread hardship and dissatisfaction. Other strong reasons to reinforce this likelihood will appear when we take a closer look at the inner workings of the system we are asked to establish. For now, it is enough to say that, unless convincing reasons can be given to show that the federal government will likely be run in a way that makes it hated or despised by the people, there is no legitimate reason to believe the Union’s laws will meet more resistance from the people, or will need different enforcement methods, than those of the individual States.

The hope of escaping punishment is a powerful motivation for rebellion; the fear of punishment is, in turn, a strong deterrent. Won’t the government of the Union—if armed with sufficient power, and able to call on all of the Confederacy’s resources—be more likely to reduce the FORMER and increase the LATTER, than a single State government relying only on its own resources? A rebellious group in a State may easily think it can take on the State government, but it is unlikely to think it can overcome the combined power of the Union. If this is true, then resistance by irregular groups against the federal authority is less of a danger than resistance against individual State authorities.

Here I’ll make an observation, which will remain valid even if some see it as new: the more the operations of national authority are mixed into the ordinary workings of government, the more citizens encounter it in everyday political life, the more it becomes familiar to their eyes and feelings, and the deeper it reaches into the matters most important to them, the more likely it is to win their respect and loyalty. Humans are very much creatures of habit. What rarely touches their senses usually has little impact on their minds. A government that is distant and barely seen cannot be expected to move the people. The lesson is: the broader the Union’s authority, and the more deeply citizens feel connected to it, the stronger their respect and affection for it—making the use of force less necessary, in direct proportion to how familiar and wide-ranging the government’s role becomes. As federal authority flows into the places where people’s passions naturally run, it will need force less and less.

One thing is clear: a government like the one proposed stands a much better chance of avoiding the need to use force than the “league” system most opponents prefer, whose authority operates only on States as groups. It has been shown that, in such a Confederacy, the only way to enforce laws is through force; frequent failures by the member States are built into the system; and when these happen, only war and violence can even try to put things right.

The plan proposed by the convention, by extending federal authority directly to the citizens of each State, will allow the government to use that State’s regular officials to carry out its laws. It’s easy to see this will erase, in most people’s minds, any difference between the “sources” of laws, and give the federal government the same advantage in getting people to obey that each State now enjoys. Additionally, there is the powerful effect of knowing that the government can call on the strength of the entire Union. It should be especially remembered here that the laws of the Confederacy, regarding their ENUMERATED and LEGITIMATE subjects, will become the SUPREME LAW of the land; every officer—legislative, executive, and judicial—in each State will be sworn to observe them. Therefore, the legislatures, courts, and magistrates of the different States will become part of the national government’s operations AS FAR AS ITS PROPER AND CONSTITUTIONAL AUTHORITY REACHES; and will help enforce its laws.(1) Anyone who thinks about the results of this situation will see there is good reason to expect the Union’s laws will be enforced regularly and peacefully, as long as its powers are used with normal prudence. If we assume the opposite, we can reach any conclusion we like from such a premise; after all, it is certainly possible, through foolish use of even the best-established powers, to enrage the people into the wildest excesses. But even if critics of the proposed Constitution think the nation’s leaders will ignore public good or duty, I would ask them what ambition, or desire for overreach, could possibly be helped by such conduct?

PUBLIUS

1. The specious arguments that claim this would destroy State governments will, in due time, be fully addressed.

## FEDERALIST No. 28. The Same Subject Continued (The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered)

### For the Independent Journal. Wednesday, December 26, 1787

HAMILTON

To the People of the State of New York:

THAT there may be situations where the national government is compelled to use force cannot be denied. Our own experience confirms what history teaches: such emergencies will arise in every society, no matter how it is structured. Seditions and insurrections, unfortunately, are as inseparable from the political body as tumors and eruptions are from the natural body. The notion that government can always rule solely by the force of law—which some insist is the only acceptable principle of republican government—belongs only to the fantasies of those political theorists who ignore the lessons of real-world experience.

If such emergencies should occur under the national government, there would be no remedy but force. The response must be proportional to the seriousness of the threat. If it is a minor disturbance in a small part of a State, the militia from the rest of the State would be able to suppress it, and it is presumed they would perform their duty. Any insurrection, regardless of its immediate cause, ultimately threatens all government. Concern for public peace—and, if not that, then for the rights of the Union—would prompt the unaffected citizens to oppose the insurgents. Furthermore, if the national government actually promotes the prosperity and happiness of the people, it would be unreasonable to believe the people would not support it.

On the other hand, if an insurrection affected an entire State or a significant part of it, then a different form of force might become necessary. Massachusetts, for example, found it necessary to raise troops to suppress internal unrest; Pennsylvania, merely fearing unrest among some of its citizens, has also resorted to this measure. Suppose New York had wanted to reassert its lost authority over the people of Vermont—could she have hoped to succeed with just the militia? Would she not have had to raise and maintain a more regular force to achieve her goal? If State governments themselves sometimes require forces other than the militia for such extraordinary cases, why should the possibility that the national government may need to do the same be considered an objection to its existence? Is it not strange that those who profess to favor the Union in principle object to the proposed Constitution on grounds that apply even more strongly to the alternative they defend? As far as this argument has any basis, it is simply a consequence of civil society at a larger scale. Who would not prefer this possibility over the constant agitation and frequent upheavals that plague small republics?

Let us look at this from another angle. Suppose, instead of a single system, two, three, or even four Confederacies were formed. Wouldn’t the same difficulty affect the operations of any of these Confederacies? Wouldn’t each face the same kinds of challenges, and when they did, be forced to use the same solutions for upholding authority—solutions which are now criticized in a government for all the States? Would the militia, in that scenario, be more willing or able to support federal authority than in the case of a general Union? Any fair and thoughtful person must admit, after careful consideration, that the main objection applies equally to either case. Whether we have one government for all, several governments for groups of States, or even complete separation, there will sometimes be a need for military force, besides the militia, to maintain peace and the rule of law against serious threats like insurrections and rebellions.

Above all other arguments, it is a complete answer to those who demand a stricter ban on peacetime military establishments to point out that the entire power of the proposed government will rest with the people’s representatives. This is the essential—and ultimately the only effective—protection for the rights and liberties of the people that can be achieved in civil society.(1)

If the people's representatives betray their trust, there is then no resource left except the exercise of that original right of self-defense, which is greater than any man-made government, and which, against national rulers’ usurpations, can be used with a much better chance of success than against the rulers of a single state. In a single state, if those with supreme power become dictators, the different regions or districts, lacking separate governments, can take no regular defensive actions. The people must take up arms hastily, without planning, coordination, or resources—relying only on their courage and desperation. The rulers, with the appearance of legal authority, can often crush the opposition before it grows. The smaller the territory, the harder it is for the people to organize opposition, and the easier it is to defeat their early attempts. Information travels faster, and the usurpers can move their military forces quickly against centers of resistance. In these circumstances, the odds are stacked against successful public resistance.

The barriers to tyranny, and the opportunities for resistance, increase with the size of the state, provided people know and are willing to defend their rights. The people’s natural strength is greater compared to that of the government’s artificial power in a large community than in a small one, making effective resistance more possible should tyranny be attempted. In a confederacy, it's no exaggeration to say the people are fully masters of their own fate. Since power always opposes power, the general government will naturally check the usurpations of the state governments, and vice versa. The people can align with either side to balance power. If their rights are violated by one, they can use the other as a tool for justice. How wise, then, it is to preserve the Union to keep this invaluable advantage!

It may safely be accepted as a basic principle of our system that State governments will, in all circumstances, provide complete security against violations of liberty by the national government. Plans for power grabs cannot as easily hide behind plausible excuses from small groups of leaders as they can from the general public. State legislatures will be better informed. They can spot dangers early and, with the machinery of civil authority and the people’s trust, they can quickly devise a coordinated response, pooling all available resources. They can easily communicate with other states and combine their forces to protect their shared freedom.

The vastness of our country is another safeguard. We have already seen its usefulness against foreign attacks, and it would serve just as well against schemes by ambitious leaders at the national level. If a federal army managed to suppress resistance in one State, the distant States could gather fresh forces. Victories in one place would have to be forfeited to address rebellions elsewhere; and as soon as the subdued area was left alone, resistance there would reappear.

We should remember that the size of the military must, in any case, depend on the nation's resources. For a long time, it will be impossible to maintain a large army. And as those resources grow, so too will the population and strength of the community. When will the federal government ever be able to raise and keep an army strong enough to impose a dictatorship on the people of such a vast nation—especially when they can, through their State governments, organize their own defense swiftly, efficiently, and systematically, like independent nations? Such a fear can safely be dismissed as irrational and unsupported by any logical argument.

PUBLIUS

1. Its full effectiveness will be examined later.

## FEDERALIST No. 29. Concerning the Militia

### From the New York Packet. Wednesday, January 9, 1788

HAMILTON

To the People of the State of New York:

The power to regulate the militia, and to command its services during insurrections and invasions, are natural aspects of overseeing the common defense and maintaining the internal peace of the Confederacy.

It does not require military expertise to see that uniform organization and discipline of the militia would have the most beneficial effects whenever they are called to serve in the public defense. Such uniformity would allow them to perform their duties in camp and on the battlefield with mutual understanding and coordination—an especially important advantage in military operations. It would also prepare them much sooner to achieve the level of proficiency in military tasks necessary for them to be effective. This valuable uniformity can only be reached by entrusting regulation of the militia to the national government. It is therefore very fitting that the plan of the convention proposes empowering the Union “to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, RESERVING TO THE STATES RESPECTIVELY THE APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS.”

Of all the objections raised against the convention’s plan, none is as unexpected or as unfounded as the criticism of this particular provision. If a well-organized militia is the best natural defense of a free country, it should certainly be regulated and controlled by the very body assigned to protect national security. If standing armies endanger liberty, then a strong federal authority over the militia should, as much as possible, remove the motive and rationale for creating such dangerous institutions. If the federal government can call on the militia in emergencies requiring military support for civil authorities, it will be less likely to need a different kind of force. If it cannot use the militia, it will have to use the other. Making an army unnecessary is a much more reliable way to prevent its existence than a thousand paper prohibitions.

To cast suspicion on the federal power to call forth the militia, some have noted that the proposed Constitution lacks any provision for calling out the POSSE COMITATUS to help magistrates carry out their duties—concluding from this that military force is meant to be the only support for enforcing the law. There is an obvious inconsistency in these objections, sometimes even coming from the same people, which does not encourage confidence in their sincerity or fairness. The same people who claim, on the one hand, that the federal government’s powers will be limitless and despotic, also insist, on the other, that it does not even have the power to call out the POSSE COMITATUS. The truth lies somewhere in between. It would be as ridiculous to doubt that the right to enact all laws NECESSARY AND PROPER to carry out its stated powers includes the authority to require citizens to assist law enforcement officers, as it would be to believe that the right to make tax collection laws grants the power to abolish inheritance rules or trial by jury in related cases. Thus, the claim that there is no federal power to call out the POSSE COMITATUS is completely without basis, and any conclusion drawn from it about federal power over the militia is as unfair as it is unreasonable. Why should the existence of a power to use force when needed be interpreted to mean that force would be the government's only tool? What should we make of the motivations of sensible men who reason in this way? How can we reconcile such arguments with honesty and charity?

By a curious extension of republican distrust, we are even taught to fear the militia itself if controlled by the federal government. It has been suggested that select corps might be formed, made up of energetic young people, who could become tools of arbitrary power. What exact plan the national government will pursue for regulating the militia cannot be predicted. However, unlike those who claim that select corps are dangerous, if the Constitution were ratified, and I were to share my views with a member of the federal legislature from this State regarding a militia establishment, I would essentially say the following:

“The idea of training the entire militia of the United States is not just impractical—it would also be harmful, even if it could be carried out. Achieving even basic skill in military maneuvers requires both time and practice. It cannot be accomplished in a single day or even a week. Requiring the vast majority of farmers and other citizens to be frequently under arms, for the sake of continual military exercises and drills necessary to reach the standards of a well-regulated militia, would be a genuine burden to the people and a major inconvenience and loss to the public. The annual reduction in the country’s productive labor, considering the current size of the population, would amount to nearly the total cost of all the States’ civil governments. Trying something that would reduce labor and industry to such a large degree would be unwise, and if attempted, could not succeed, as it would not be tolerated for long. All that can reasonably be expected, regarding the population at large, is that they are properly armed and equipped; to ensure this is not neglected, it will be necessary to assemble them once or twice a year.

“But even though the scheme of training the whole nation must be abandoned as harmful or impossible, it is still extremely important that a well-designed plan for properly organizing the militia be adopted as soon as possible. The government’s efforts should especially focus on creating a select corps of moderate size, based on principles that will truly prepare them for service if needed. By focusing the plan, it becomes possible to have an excellent group of well-trained militia, ready to take the field whenever the State’s defense requires it. This will not only reduce the need for larger military forces, but if the government ever needed to assemble a full army, that army could never threaten the people’s liberties so long as a large body of citizens—nearly equal to them in discipline and armed skill—stands ready to defend their own rights and those of their countrymen. This, in my view, is the only true replacement for a standing army, and it provides the best possible security against one, if it were ever proposed.”

In this way, I would reason differently than the opponents of the proposed Constitution, drawing arguments for safety from the very topics they claim are filled with danger and disaster. But how the national legislature may actually reason on this issue is something neither they nor I can predict.

The idea of true danger to liberty from the militia is so far-fetched and extreme that it is hard to know whether to treat it seriously or mock it—whether to see it as just a rhetorical skill challenge; as a dishonest attempt to create prejudice at any cost; or as the product of wild political fanaticism. Where, in the name of common sense, should our fears stop if we cannot trust our sons, brothers, neighbors, or fellow-citizens? What possible danger could come from men who interact with the rest of society daily, sharing the same feelings, attitudes, habits, and interests? What reasonable fear can be drawn from giving the Union the power to set militia regulations and to call on its services when needed, while the individual States retain the SOLE AND EXCLUSIVE POWER TO APPOINT OFFICERS? If anyone could ever seriously be suspicious of the militia under any arrangement with the federal government, the fact that States appoint the officers should put that fear to rest. There is no doubt this arrangement will always keep major influence over the militia in the States’ hands.

When reading many of the anti-Constitution publications, one might think he is reading a poorly written fantasy or romance, which, instead of presenting natural and pleasant images, gives nothing but frightening and distorted figures—

“Gorgons, hydras, and chimeras dire”—

discoloring and misrepresenting everything, transforming whatever it mentions into a monster.

A clear example is found in the wild and unlikely claims about calling up the militia for service. The men of New Hampshire are supposedly to be sent to Georgia, those of Georgia to New Hampshire, New York’s militia to Kentucky, and Kentucky’s to Lake Champlain. Even more absurd, the debts owed to France and Holland are to be repaid in militiamen instead of in gold coins or ducats. At one extreme, a huge army is supposed to crush the people’s liberties; at another, the militia of Virginia is to be dragged hundreds of miles to suppress Massachusetts’s rebellious republicanism; and Massachusetts’s militia is supposedly to be sent as far to quell Virginia’s aristocratic pride. Do those who speak this way really believe their persuasive skills can make the American people accept these impossible ideas as undeniable truths?

If there were ever an army meant to serve as an instrument of tyranny, why would the militia be needed? If there is no army, and the militia is called upon for a far-off and hopeless mission to enslave some of their fellow citizens, where would the militia turn, except toward the tyrants who dreamed up so foolish and wicked a scheme—to crush them in their supposed strongholds of power and make them an example of the legitimate anger of an abused and outraged people? Is this really how usurpers seize power in a large and enlightened nation? Do they begin by making the very tools of their intended power hate them? Do they typically start their rise with pointless and offensive actions meant solely to bring upon themselves universal hatred and condemnation? Are these wild assumptions really the thoughtful warnings of wise patriots to a wise people, or are they the reckless ravings of agitators or fanatics? Even if we imagined the national rulers consumed by ambition, it is impossible to believe they would choose such absurd ways to achieve their ends.

In times of rebellion or invasion, it is natural and appropriate for the militia of one State to be marched into another to fight a common enemy or to protect the republic from faction or sedition. This happened often, regarding invasions, during the recent war, and this kind of mutual aid is actually a main goal of our political union. If this power is placed with the Union, there will be no risk that the dangers of a neighbor are ignored until they are too close for comfort and only self-preservation can motivate a response, instead of duty and sympathy.

PUBLIUS

## FEDERALIST No. 30. Concerning the General Power of Taxation

### From the New York Packet. Friday, December 28, 1787.

HAMILTON

To the People of the State of New York:

It has already been noted that the federal government must have the power to support the national armed forces; this includes the expenses of raising troops, building and equipping fleets, and all other military needs. But these are not the only things for which the Union must have authority to raise revenue. It must also provide for supporting the national civil service; for paying national debts owed or that may be incurred; and, in general, for every matter requiring payments from the national treasury. The conclusion is that there must be, built into the structure of government, a general power of taxation, in one form or another.

Money is rightly considered the vital principle of the body politic; it is what keeps it alive and moving, and enables it to fulfill its most basic functions. Therefore, a full power to secure a regular and sufficient supply of money, as far as the community's resources allow, must be seen as essential in any constitution. Without this, one of two problems must occur: either the people will face constant plundering as a poor substitute for a more reasonable way to meet public needs, or the government will wither away and, before long, collapse.

In the Ottoman, or Turkish, empire, although the sovereign is otherwise the absolute master of his subjects' lives and fortunes, he has no right to create new taxes. As a result, he allows the bashaws, or governors, to ruthlessly plunder the people; he then extorts from them what he needs for himself and the state. In America, for similar reasons, the government of the Union has slowly decayed and is nearly powerless. Who can doubt that the happiness of the people in both nations would be greater with proper authorities, in the right hands, empowered to provide the revenues required for public needs?

The current Confederation, weak as it is, was supposed to give the United States unlimited power to meet the nation’s financial needs. But because it is based on a faulty principle, it has been done in such a way as to completely defeat this purpose. Congress, by the articles of that agreement (as already described), is authorized to set and demand whatever sums of money they think necessary for the United States’ service; and their requests, as long as they follow the rules for apportionment, are, in every constitutional sense, binding on the States. The States have no right to question the request—only the discretion to decide how to provide the required sums. Even though this is exactly the case, and although claiming discretion would violate the Union’s articles, and even if it has rarely or never been openly argued, in practice this power is always exercised, and would continue as long as the Confederacy’s revenues depend on the States as middlemen. Everyone who knows even a little about our public affairs is aware of the results of this system, and they have been fully described in other parts of these papers. This has been the main cause of our miserable condition, which gives us reason both for shame and our enemies reason for gloating.

What remedy can there be for this situation, except a change in the very system that has produced it—a change away from the flawed and misleading practice of quotas and requisitions? What substitute can possibly be imagined for this financial mirage, but that of empowering the national government to raise its own revenues by the standard methods of taxation recognized in every well-structured civil constitution? Skilled men may argue convincingly on any subject; but no human ingenuity can devise any other solution to rescue us from the inconveniences and difficulties that naturally result from unreliable funding of the public treasury.

The more perceptive opponents of the new Constitution admit the strength of this reasoning, but they qualify their concession by drawing a distinction between what they call INTERNAL and EXTERNAL taxation. They would reserve the former for the State governments, while the latter—meaning commercial tariffs or duties on imported goods—they are prepared to concede to the federal government. However, this distinction violates the principle of sound sense and policy, which holds that every POWER should match its OBJECT. It would still leave the general government in a dependent relationship to the State governments, inconsistent with any idea of vigor or effectiveness. Who can claim that commercial tariffs, by themselves, are or would be sufficient for both present and future needs of the Union? If we include the existing debt, both foreign and domestic, along with any reasonable plan for extinguishing that debt—all while maintaining the necessary establishments everyone agrees upon—we could not reasonably suppose that this single resource, even at its best, would be enough for our current needs. The Union's future needs cannot even be predicted or limited; and, as has been noted more than once, the power to provide for them as they arise should be equally unrestricted. It seems justified by human history to state that, IN THE NORMAL COURSE OF EVENTS, A NATION'S NECESSITIES AT EVERY STAGE WILL BE AT LEAST EQUAL TO ITS RESOURCES.

To say that deficits might be covered by requisitions upon the States is, on one hand, to admit that this system is unreliable, and on the other hand, to rely on it for everything beyond a certain limit. Those who have closely observed its flaws and deficiencies, as shown in practice or described in previous essays, must feel an overwhelming reluctance to trust national interests to any degree to such a system. Its unavoidable effect, whenever it is activated, would be to weaken the Union and sow discord and competition between the federal government and its members, as well as among the members themselves. Can we expect that deficits would be better handled by this method than the total needs of the Union have previously been covered in the same way? It should be remembered that if States are asked for less, they will have proportionally less means to meet even that lower demand. If we take the opinions of those who argue for this distinction as fact, we might conclude that there is some known point in national affairs at which it is safe to stop and declare: Thus far public happiness will be promoted by supplying the government's needs, and anything beyond this is not our concern. How could a government, chronically underfunded and always in need, fulfill its own purposes, provide security, advance prosperity, or maintain the nation's reputation? How could it ever possess energy, stability, dignity, or credit, or inspire confidence at home or respect abroad? How can its administration be anything other than a series of half-measures—temporary, weak, and embarrassing? How could it avoid frequently sacrificing its commitments to immediate necessity? How could it plan or carry out any ambitious or forward-thinking projects for the public good?

Let us consider what the effects of this situation would be during the very first war in which we might be engaged. For the sake of argument, assume that revenue from tariff duties is sufficient for public debt payments and basic peacetime operations of the Union. In such circumstances, a war breaks out. What would the government do? Taught by experience that it cannot rely on requisitions, and unable to access new resources by its own authority, under the pressures of national danger, would it not be forced to divert funds already earmarked for other purposes to the defense effort? It is hard to see how such a step could be avoided—and if it were taken, it is clear that it would destroy public credit precisely when it was most vital to national safety. To think that credit could be disregarded at such a crisis would be the height of folly. In modern warfare, even the wealthiest nations are compelled to use large loans. A country as relatively poor as ours must feel this necessity even more strongly. But who would lend to a government that begins its borrowing requests by proving it cannot be trusted to make payments? The loans it could secure would be both limited and burdensome. They would be offered under the same harsh terms as those given by moneylenders to bankrupt or dishonest debtors—sparingly, and at extremely high rates.

Some may think that, due to the limited resources of the country, even a national government with unlimited taxation power might be forced to reallocate established funds in a true emergency. But two points should calm any fears about this: first, with full authority, the resources of the entire community would actually be mobilized for the Union's benefit; second, any deficits that might arise could easily be covered by loans.

The power to create new sources of revenue from new objects of taxation would allow the national government to borrow as much as it needed. Both foreign and American citizens could then reasonably trust its commitments; but to depend on a government that itself must depend on thirteen different States for the means to honor its agreements requires a degree of credulity rarely found in financial transactions, and is at odds with normal financial caution.

Thoughts like these may carry little weight with those who hope to see America realize the idyllic scenes of myth or poetry; but for those who believe that we are likely to experience the same changes and hardships as other nations have, these considerations must seem seriously important. Such people must view the actual state of their country with anxious concern and fear the harms that ambition or revenge could too easily inflict upon it.

PUBLIUS

## FEDERALIST No. 31. The Same Subject Continued (Concerning the General Power of Taxation)

### From the New York Packet. Tuesday, January 1, 1788.

HAMILTON

To the People of the State of New York:

IN EVERY KIND OF INQUIRY, there are certain basic truths or first principles on which all later arguments must rely. These have an internal evidence that, even before any careful thought or analysis, commands the mind’s agreement. Where this effect is not achieved, it must be due either to some defect in perception, or the influence of strong interests, passions, or prejudices. Such are the maxims in geometry: “the whole is greater than its part; things equal to the same are equal to each other; two straight lines cannot enclose a space; all right angles are equal.” Equally, there are similar maxims in ethics and politics: there cannot be an effect without a cause; the means should match the end; each power should be suited to its object; there should be no bounds on a power needed to accomplish a purpose that is, itself, unlimited. There are other truths in these fields which, if not quite axioms, are such direct conclusions from them—and so obvious and supported by common sense—that they command the assent of a reasonable and open mind with nearly equal force.

The topics of geometric investigation are so distant from the everyday pursuits that stir strong human emotions that people easily accept even complex or counterintuitive theorems of the science. For example, the INFINITE DIVISIBILITY of matter—that a FINITE thing can be divided endlessly, even to the smallest atom—is accepted by mathematicians, though it is just as hard for common sense to comprehend as any religious mystery assailed by critics of faith.

But when it comes to morals and politics, people are much less willing to accept such principles. To some degree, this is appropriate and useful: caution and scrutiny are necessary guards against error and deception. However, this skepticism can go too far, becoming stubbornness, perversity, or dishonesty. While it can't be claimed that the principles of moral and political knowledge are as certain as those of mathematics, they are more certain than we tend to admit—judging from how people behave in particular circumstances. The confusion is much more often due to passion or bias in the reasoner than a lack of clarity in the subject itself. Too often, people do not use their own understanding fairly but become tangled in words and confusing arguments because they are influenced by some personal bias.

Otherwise, how could it happen (if we believe the objectors to be sincere), that such clear points as those showing the necessity of a general taxation power for the federal government still face serious opposition from people of intelligence? As these points have already been thoroughly stated, it may nevertheless be useful to summarize them here, as a lead-in to responding to any objections. In essence, they are as follows:

A government must possess every power necessary to fully achieve the objectives entrusted to it, and to completely fulfill the trusts for which it is responsible, limited only by public good and the people's will.

Since managing national defense and securing peace against both foreign and domestic threats requires preparation for dangers and emergencies that cannot be predicted or confined, the power to make such preparations should be limited only by the actual needs of the nation and its available resources.

Since revenue is the essential tool for obtaining the means to meet national needs, the power to raise such revenue fully must be included as part of providing for those needs.

Since both theory and practice demonstrate that the power to raise revenue is ineffective when applied only to States collectively, the federal government must, by necessity, be given an unrestricted power of taxation in the usual forms.

Did not experience demonstrate the opposite, it would be natural to conclude that the justification for granting a general power of taxation to the national government could safely rely on the evidence of these points, without the need for further arguments or illustrations. However, in reality, those opposed to the proposed Constitution, far from accepting the fairness or truth of these points, have focused much of their energy on opposing this part of the plan. Therefore, it is worthwhile to examine the arguments they use against it.

The most thoroughly argued objections seem, in substance, to be as follows: “It is not correct that just because the needs of the Union may be limitless, its power of taxation should also be unlimited. Revenue is just as vital to local administrations as it is to the Union; and the former are at least equally important as the latter to the happiness of the people. Therefore, it is just as necessary for State governments to have independent means to meet their requirements as it is for the national government to have the same in regard to the Union’s needs. But an unlimited power of taxation in the LATTER might, and probably would over time, deprive the FORMER of the means to meet their own needs; and would make them dependent entirely on the mercy of the national legislature. Since the laws of the Union will become the supreme law of the land and since it will have the power to pass all laws NECESSARY for carrying out the authorities given to it, the national government could at any time abolish State taxes under the pretense of interfering with its own. It might claim this is necessary for the effectiveness of national revenues. As a result, all sources of taxation could gradually become federal monopolies, completely excluding and destroying the State governments.”

At times, this reasoning seems to rest on the assumption of usurpation by the national government; at other times, it seems to be intended merely as a deduction from the normal operation of its powers as set out in the Constitution. It can only fairly be considered in the second sense. The moment we start speculating about the possible abuses of federal power, we enter murky territory and put ourselves beyond the reach of rational discussion. Imagination may run wild and become confused in the twists and turns of its own inventions, unsure of how to escape the mess it has created. Regardless of the limitations or modifications on the Union’s powers, it's always possible to imagine endless dangers; excessive suspicion and fear can paralyze us. As I have said elsewhere, concerns based on the danger of usurpation should be directed to the structure and composition of government, not to the type or extent of its powers. State governments, by their original constitutions, have full sovereignty. Where does our protection lie against usurpation from that direction? Doubtless it lies in the way those governments are built, and in the appropriate dependence of their administrators on the people. If the proposed federal government is found, after impartial examination, to offer similar security, then all fears of usurpation should be put aside.

We should not forget that State governments striving to overpower the Union is just as likely as the reverse. Which side might prevail in such a conflict would depend on which has greater means to guarantee success. In republics, strength is always with the people, and there are strong reasons to believe that the State governments will typically hold more influence over them. The natural conclusion, then, is that conflicts of this sort will usually end to the detriment of the Union; in other words, the likelihood is greater that the States will encroach upon federal power than vice versa. Still, speculations of this kind are extremely uncertain and unreliable; it is much safer to put them aside altogether and focus on the nature and extent of the powers as described in the Constitution. Everything beyond this point must be left to the prudence and resolve of the people, who will, we hope, always take care to maintain the constitutional balance between the general and State governments. On this foundation—which is clearly the right one—it will not be difficult to answer the objections raised against giving the United States an indefinite power of taxation.

PUBLIUS

## FEDERALIST No. 32. The Same Subject Continued (Concerning the General Power of Taxation)

### From The Independent Journal. Wednesday, January 2, 1788.

HAMILTON

To the People of the State of New York:

Although I believe there is no real danger in allowing the Union power to control the States' ability to levy money, because I am convinced that public opinion, the serious risk of provoking State government resistance, and the recognized usefulness and necessity of local administrations for local affairs would serve as effective barriers against misuse of such power, still, I am willing here to fully accept the logic that requires the States to have an independent and uncontested authority to raise their own revenues for their own needs. Granting this, I assert that (except for duties on imports and exports) the States would, under the convention’s plan, retain that authority fully and absolutely; and any attempt by the national government to limit them in exercising it would be an extreme overstep, unsupported by any part or clause of its Constitution.

If the States were fully merged into one national sovereignty, it would mean complete subordination of the parts, and any powers remaining to the States would be totally dependent on national will. But since the convention’s plan only aims at a partial union or consolidation, the State governments would clearly keep all the rights of sovereignty they previously had and that are not, by this act, EXCLUSIVELY delegated to the United States. This exclusive delegation—or, more accurately, this transfer—of State sovereignty would only exist in three cases: where the Constitution explicitly gives exclusive authority to the Union; where it gives the Union a particular authority and, in another section, prohibits the States from exercising that same authority; and where it gives the Union authority for which similar authority in the States would be entirely and absolutely CONTRADICTORY and REPUGNANT. I use these terms to distinguish this last scenario from another that might appear similar but is actually different: where shared jurisdiction might lead to occasional clashes in POLICY, but wouldn’t mean any direct contradiction or conflict in constitutional authority. These three cases of exclusive federal jurisdiction can be illustrated as follows: The second-to-last clause in Article I, Section VIII, states that Congress shall have “EXCLUSIVE LEGISLATION” over the district chosen as the seat of government. This fits the first case. The first clause of the same section empowers Congress “to lay and collect taxes, duties, imposts and excises”; and Article I, Section X, Clause 2 declares, “NO STATE SHALL, without the consent of Congress, lay any imposts or duties on imports or exports, except for the purpose of executing its inspection laws.” This creates an exclusive power in the Union to levy duties on imports and exports, with the particular exception noted, but this is further limited by another clause declaring no tax or duty will be laid on articles exported from any State. Because of this, the exclusive power now only applies to DUTIES ON IMPORTS. That matches the second case. The third is found in the clause giving Congress the power “to establish a UNIFORM RULE of naturalization throughout the United States.” This must be exclusive; because if each State could set its own rule, there couldn’t be a uniform standard.

There is a situation that might seem similar to the last, but is, in fact, quite different and is relevant to our immediate subject. I mean the power to tax all articles other than imports and exports. I argue this is plainly a concurrent and equal authority in both the United States and the individual States. There’s no language in the granting clause making this power EXCLUSIVE to the Union. There’s no separate statement or section that prohibits the States from exercising it. In fact, a strong and clear argument for this can be drawn from the restriction imposed on the States regarding duties on imports and exports. This restriction suggests that, if not stated, the States would possess the power now denied; and it further suggests that, for all other taxes, their authority is unhindered. Any alternative view would be both needless and risky; needless, because if the Union’s grant of such taxation power implied the States’ exclusion or subordination in this matter, there’d be no need for the restriction; risky, because its inclusion leads directly to the conclusion that—if the objectors’ logic is correct—the States, in all matters not covered by that restriction, would have a concurrent power to tax along with the Union. The restriction is what lawyers call a NEGATIVE PREGNANT: a denial of one thing, and an acknowledgment of another—a denial of State power to tax imports and exports, and an acknowledgment of their power to tax all other items. It would be sophistry to argue that it was meant to absolutely forbid the States from taxing in that area, but allow them to levy other taxes only under the control of Congress. The restraining clause only states that States shall not, WITHOUT THE CONSENT OF CONGRESS, levy such duties; and if this is to be understood in the latter sense, then the Constitution would be expressly creating a clause for an absurd outcome: that States could, with Congress’ consent, tax imports and exports; and could levy all other taxes, unless the national government said otherwise. If that were the intended meaning, why not leave it to the original clause granting general taxation power to the Union? Clearly, that was not the intent, and such a construction cannot stand.

The supposed conflict between federal and State taxation powers cannot be supported in the way required to justify excluding the States from that power. Certainly, a State’s tax on a specific article might make a further federal tax on the same item INEXPEDIENT, but it does not mean the federal government would be constitutionally unable to levy such a tax. The amount imposed, and whether further taxes are wise, would simply be a question of prudence for both sides; there would be no direct contradiction of authority. The specific financial policies of the nation and the States might occasionally conflict and require mutual accommodations. However, it is not just the possibility of inconvenience, but only a clear constitutional contradiction that can, by implication, take away and eliminate a previously existing right of sovereignty.

The need for concurrent jurisdiction in certain matters is a result of dividing sovereign power; and the rule that all powers not explicitly taken from the States in favor of the Union remain with the States, in full strength, is not just a theory resulting from that division, but is clearly supported throughout the document containing the Constitution’s articles. We can see that although general powers are granted, special care has been taken—where it was considered improper for similar powers to be exercised by the States—to include negative clauses specifically barring States from acting. Article I, Section X consists entirely of such provisions. This fact clearly shows what the convention intended, and provides a rule for interpreting the act as a whole, strengthening my argument and disproving any contrary view.

PUBLIUS

## FEDERALIST No. 33. The Same Subject Continued (Concerning the General Power of Taxation)

### From The Independent Journal. Wednesday, January 2, 1788.

HAMILTON

To the People of the State of New York:

The rest of the argument against the sections of the Constitution addressing taxation centers on the following clause. The last clause of Article I, Section VIII of the proposed Constitution gives the national legislature the power “to make all laws which shall be NECESSARY and PROPER for carrying into execution THE POWERS by that Constitution vested in the government of the United States, or in any department or officer thereof”; and Article VI, Clause 2 declares, “that the Constitution and the laws of the United States made IN PURSUANCE THEREOF, and the treaties made by their authority shall be the SUPREME LAW of the land, any thing in the constitution or laws of any State to the contrary notwithstanding.”

These two clauses have been the source of much intense criticism and emotional outcry against the proposed Constitution. They have been presented to the people with all the exaggerated distortions of misrepresentation, described as dangerous tools by which their local governments would be destroyed and their liberties eliminated; as a hideous monster whose destructive reach would spare neither sex nor age, neither high nor low, neither sacred nor profane. And yet, as strange as it may seem, after all this outcry, it can be confidently affirmed to those who have not seen them in the same light, that the constitutional operation of the intended government would be exactly the same if these clauses were completely removed as if they were repeated in every article. They simply state a truth that would naturally and unavoidably be implied by the very act of creating a federal government and giving it certain specific powers. This is such a clear point that even the most moderate mind can hardly listen to the scorn poured on this part of the plan without feeling disturbed.

What is a power but the ability to do something? What is the ability to do something but the authority to use the MEANS necessary for its accomplishment? What is LEGISLATIVE power but the power to make LAWS? What are the MEANS to exercise LEGISLATIVE power except LAWS? What is the power to lay and collect taxes but a LEGISLATIVE POWER, or the power to MAKE LAWS to lay and collect taxes? What are the proper means for carrying out that power but NECESSARY and PROPER laws?

This simple line of questioning immediately gives us a way to judge the true nature of the clause being criticized. It leads us to the obvious truth that the power to lay and collect taxes must include the power to pass all laws NECESSARY and PROPER for executing that power. And what does the much-maligned provision in question do, other than declare this same truth—that the national legislature, to whom the power to lay and collect taxes had already been given, might, in carrying out that power, pass all laws NECESSARY and PROPER to make it effective? I have focused these observations particularly on the power of taxation because it is the immediate subject being discussed, and because it is the most important authority proposed to be given to the Union. But the same logic applies to all other powers declared in the Constitution. It is EXPRESSLY to carry out these powers that the so-called "sweeping clause" authorizes the national legislature to pass all NECESSARY and PROPER laws. If there's anything objectionable, it must be found in the specific powers this general statement is based on. The statement itself, though it might be redundant, is at least completely harmless.

But SUSPICION may ask, Why was it included? The answer is that it could only have been done for extra precaution, to guard against any sophistical interpretations by those who might later want to restrict or evade the legitimate powers of the Union. The Convention probably foresaw—what these papers have aimed to emphasize—that the main danger to our political well-being is that the State governments will eventually undermine the foundations of the Union; and so, they might have thought it necessary, on such a crucial point, to leave nothing open to interpretation. Whatever the reason, the wisdom of this precaution is clear from the very protests raised against it; since that outcry itself reveals a tendency to question the basic and essential truth which that provision clearly intends to establish.

But again, it may be asked, Who will decide what is NECESSARY and PROPER in the laws passed to exercise the Union’s powers? I answer, first, that this question comes up just as much with the simple grant of those powers as with the declaratory clause. Second, I answer that the national government, like every government, must decide first how to properly exercise its powers, and its constituents, in the end, will judge. If the federal government oversteps its proper authority and uses its powers tyrannically, the people—who created it—must look to the standard they have established and take whatever actions may be needed to address the injury to the Constitution, as the situation suggests and prudence allows. The propriety of a law, in a constitutional sense, must always be judged by the nature of the powers it is based on. Suppose, by some twisted interpretation of its authority (which, honestly, is hard to imagine), the Federal legislature tried to change the law of inheritance in a State; wouldn't it be obvious that in doing so, it had exceeded its role and intruded on the rights of the State? Suppose, again, on the claim of interfering with its revenue, it tried to abolish a land tax imposed by a State authority—wouldn't that clearly be an invasion of the shared power over this kind of tax, which the Constitution plainly expects to exist with the State governments? If any doubt ever arises on this matter, credit for that confusion belongs entirely to those who, in their zealous opposition to the convention's plan, have tried to cover it in misleading arguments meant to hide the plainest truths.

But it is said that the laws of the Union are to be the SUPREME LAW of the land. But what does that mean, or what would they be if not supreme? It's clear they would mean nothing. A LAW, by definition, is supreme. It is a rule that those to whom it applies must follow. This is true in every political association. If individuals join a society, the laws of that society must be the highest guide for their actions. If several political societies combine into a larger one, the laws that the latter enacts, within the powers given it by its constitution, must be supreme over those societies and the people who make them up. Otherwise, it would be only a treaty, relying on the good faith of the parties, and not a government, which means POLITICAL POWER AND SUPREMACY. However, this does not mean that acts of the larger society that are NOT WITHIN its constitutional powers, but invade the remaining authorities of the smaller societies, become the supreme law of the land. Those are simply acts of usurpation, and should be treated as such. So, we see that the clause declaring the supremacy of the Union’s laws, like the one just discussed, only establishes a truth that follows directly and necessarily from the establishment of a federal government. I am sure it is noticed that it EXPRESSLY limits this supremacy to laws made ACCORDING TO THE CONSTITUTION; which I mention just as an example of the Convention’s caution, since that limitation would have been understood anyway, even if not stated.

Therefore, although a law laying a tax for the United States would be supreme in its nature and could not legally be resisted, a law abolishing or blocking the collection of a tax laid by a State authority (except for duties on imports and exports) would not be the supreme law of the land, but an abuse of power not granted by the Constitution. Where an improper piling up of taxes on the same object might make collection difficult or uncertain, this would be a problem shared by both sides, resulting not from superiority or weakness of power but from an unwise exercise of power by one or the other, disadvantageous to both. However, it is hoped and expected that mutual interest would encourage cooperation to avoid significant trouble. The conclusion is that the individual States, under the proposed Constitution, would keep an independent and total authority to raise as much revenue as they need by any kind of taxation—except on imports and exports. The next paper will show that this CONCURRENT JURISDICTION in taxation was the only acceptable substitute for making State authority completely subordinate to federal authority in this area.

PUBLIUS

## FEDERALIST No. 34. The Same Subject Continued (Concerning the General Power of Taxation)

### From The Independent Journal. Saturday, January 5, 1788.

HAMILTON

To the People of the State of New York:

I flatter myself that it has been clearly shown in my last paper that the individual States, under the proposed Constitution, would have the SAME authority as the Union regarding revenue, except for duties on imports. Since this gives the States access to by far the greatest part of the community's resources, there is no grounds for claiming that they would not have enough means to fulfill their own needs without outside control. That the field is wide enough will be even more obvious when we consider the small share of public expense that will actually fall to the State governments.

To argue in the abstract that this co-equal authority cannot exist is to set up speculation and theory against fact and reality. Such arguments might be useful to show that something OUGHT NOT TO EXIST, but should be completely rejected when used to claim that it does not exist, despite obvious facts. It is well known that in the Roman republic, the ultimate legislative authority was, for ages, held in two separate political bodies—not as branches of the same legislature, but as independent legislatures, each dominated by different interests: patrician in one, plebeian in the other. Many arguments could have been made to show how unfit it was for two seemingly contradictory authorities, each with the power to ANNUL or REPEAL the acts of the other, to exist. But anyone who tried, in Rome, to prove that they did not exist would have been considered out of their mind. It's plain that I am referring to the COMITIA CENTURIATA and the COMITIA TRIBUTA. The former, in which people voted by centuries, was organized to give more power to patricians; the latter, where numbers prevailed, gave complete power to the plebeians. Yet these two legislatures coexisted for ages, and the Roman republic reached the highest peak of greatness.

In the case before us, there is no such contradiction as in that example; neither side has power to annul the acts of the other. And in practice, there’s little reason to expect trouble, because over time, the needs of the States will naturally shrink to A VERY NARROW RANGE; and meanwhile, the United States will likely find it easy to stay away from those resources which the States would want to use.

To make a clearer judgment on this question, it’s wise to consider the difference between the needs that require federal revenue and those that require State revenue. We will see that the first are virtually unlimited, while the latter are kept within very modest bounds. In making this assessment, we must not just look at the present, but look forward into the distant future. Civil government constitutions must not be made only for current needs, but must consider both present and future possibilities according to the usual and tested course of human affairs. Nothing could be more misleading than to judge how much power the national government needs based only on its immediate requirements. Government must have the ABILITY to provide for all possible future events; and because those events are unlimited in nature, it is impossible to safely set strict limits. It's true that an estimate could be made, with decent accuracy, for the revenue needed to pay the current debts of the Union and maintain the institutions that, for some time, would be enough in peacetime. But would it be wise—or would it not be foolish in the extreme—to stop at that point, and leave a government responsible for national defense unable to protect the community against future attacks on public peace, either from foreign war or internal unrest? If, on the other hand, we should go beyond that minimum, where should we stop, short of unlimited power to respond to emergencies as they arise? While it's easy to claim, in general ways, that it's possible to plan properly for likely dangers, we may safely challenge those who say so to provide their evidence—and we can be sure their answers will be as uncertain and vague as any estimate of how long the world will last. Arguments based only on internal dangers are weak; even those are hard to calculate. But if we want to be a commercial nation, we must be able to defend our commerce at some point. Supporting a navy and fighting naval wars involves costs that can’t be predicted by political calculations.

Even if we should try the unwise and never-before-attempted practice of forbidding offensive war on reasons of state, certainly we should not make the government unable to guard the community against the ambitions or hostility of other nations. For some time, a storm has been brewing in Europe. If it breaks, who guarantees that its violence won’t touch us? No reasonable person could quickly assert that we are completely safe from it. Or, if the dangerous situation in Europe fades away, or war breaks out without reaching us, what security do we have that our peace will last long, from other causes or other places? Remember: peace or war won’t always be our choice; no matter how modest or unambitious we are, we can't rely on the restraint or lack of ambition of others. Who would have thought, right after the last war, that France and Britain, so exhausted by conflict, would so soon threaten each other again? History shows that the fierce and destructive passions that drive war are much more powerful in mankind than the gentle and generous feelings behind peace; and that to make our political system expecting endless peace is to base it on the weakest part of human nature.

What are the main sources of expense in every government? What has caused the overwhelming debts weighing down so many European nations? The answer is obvious: wars and rebellions; and the support of institutions needed to protect society from these two deadliest social diseases. The costs of those institutions needed for domestic administration—for legislative, executive, and judicial departments, and their support functions, as well as for promoting farming and manufacturing (which covers nearly all State spending)—are tiny compared to those needed for national defense.

In the kingdom of Great Britain, where all the extravagant display of monarchy must be paid for, not more than one-fifteenth of the country’s annual revenue goes for those domestic costs; the other fourteen-fifteenths are used to pay interest on debts from wars and to support fleets and armies. If it should be argued that the expenses of a monarchy’s wars are not the right standard for a republic’s needs, it should also be considered that there is as much difference between the extravagance of a rich kingdom’s domestic spending and the thrift that would suit a republic. If we deduct sensibly from both sides, the proportion still holds.

Let us look at the large debt we ourselves built up in a single war, and just consider an average share of the events that disturb national peace, and we’ll immediately see, with no need for detailed explanation, that there will always be a huge difference between the demands of federal and State spending. It's true that several States, individually, are burdened with debts from the recent war. But this cannot happen again if the proposed system is adopted; and once these debts are paid off, the only significant need for new State revenue will be to support the civil government, and if we add all unexpected expenses, the total in each State should be far less than two hundred thousand pounds.

In framing a government for posterity as well as ourselves, we ought, in those provisions which are designed to be permanent, to calculate, not on temporary, but on permanent causes of expense. If this principle be a just one our attention would be directed to a provision in favor of the State governments for an annual sum of about two hundred thousand pounds; while the exigencies of the Union could be susceptible of no limits, even in imagination. In this view of the subject, by what logic can it be maintained that the local governments ought to command, in perpetuity, an EXCLUSIVE source of revenue for any sum beyond the extent of two hundred thousand pounds? To extend its power further, in EXCLUSION of the authority of the Union, would be to take the resources of the community out of those hands which stood in need of them for the public welfare, in order to put them into other hands which could have no just or proper occasion for them.

Suppose, then, the convention had been inclined to proceed upon the principle of a repartition of the objects of revenue, between the Union and its members, in PROPORTION to their comparative necessities; what particular fund could have been selected for the use of the States, that would not either have been too much or too little too little for their present, too much for their future wants? As to the line of separation between external and internal taxes, this would leave to the States, at a rough computation, the command of two thirds of the resources of the community to defray from a tenth to a twentieth part of its expenses; and to the Union, one third of the resources of the community, to defray from nine tenths to nineteen twentieths of its expenses. If we desert this boundary and content ourselves with leaving to the States an exclusive power of taxing houses and lands, there would still be a great disproportion between the MEANS and the END; the possession of one third of the resources of the community to supply, at most, one tenth of its wants. If any fund could have been selected and appropriated, equal to and not greater than the object, it would have been inadequate to the discharge of the existing debts of the particular States, and would have left them dependent on the Union for a provision for this purpose.

The preceding train of observation will justify the position which has been elsewhere laid down, that “A CONCURRENT JURISDICTION in the article of taxation was the only admissible substitute for an entire subordination, in respect to this branch of power, of State authority to that of the Union.” Any separation of the objects of revenue that could have been fallen upon, would have amounted to a sacrifice of the great INTERESTS of the Union to the POWER of the individual States. The convention thought the concurrent jurisdiction preferable to that subordination; and it is evident that it has at least the merit of reconciling an indefinite constitutional power of taxation in the Federal government with an adequate and independent power in the States to provide for their own necessities. There remain a few other lights, in which this important subject of taxation will claim a further consideration.

PUBLIUS

## FEDERALIST No. 35. The Same Subject Continued (Concerning the General Power of Taxation)

### For the Independent Journal. Saturday, January 5, 1788

HAMILTON

To the People of the State of New York:

BEFORE we proceed to examine any other objections to an indefinite power of taxation in the Union, I shall make one general remark; which is, that if the jurisdiction of the national government, in the article of revenue, should be restricted to particular objects, it would naturally occasion an undue proportion of the public burdens to fall upon those objects. Two evils would spring from this source: the oppression of particular branches of industry; and an unequal distribution of the taxes, as well among the several States as among the citizens of the same State.

Suppose, as has been contended for, the federal power of taxation were to be confined to duties on imports, it is evident that the government, for want of being able to command other resources, would frequently be tempted to extend these duties to an injurious excess. There are persons who imagine that they can never be carried to too great a length; since the higher they are, the more it is alleged they will tend to discourage an extravagant consumption, to produce a favorable balance of trade, and to promote domestic manufactures. But all extremes are pernicious in various ways. Exorbitant duties on imported articles would beget a general spirit of smuggling; which is always prejudicial to the fair trader, and eventually to the revenue itself: they tend to render other classes of the community tributary, in an improper degree, to the manufacturing classes, to whom they give a premature monopoly of the markets; they sometimes force industry out of its more natural channels into others in which it flows with less advantage; and in the last place, they oppress the merchant, who is often obliged to pay them himself without any retribution from the consumer. When the demand is equal to the quantity of goods at market, the consumer generally pays the duty; but when the markets happen to be overstocked, a great proportion falls upon the merchant, and sometimes not only exhausts his profits, but breaks in upon his capital. I am apt to think that a division of the duty, between the seller and the buyer, more often happens than is commonly imagined. It is not always possible to raise the price of a commodity in exact proportion to every additional imposition laid upon it. The merchant, especially in a country of small commercial capital, is often under a necessity of keeping prices down in order to a more expeditious sale.

The maxim that the consumer is the payer, is so much oftener true than the reverse of the proposition, that it is far more equitable that the duties on imports should go into a common stock, than that they should redound to the exclusive benefit of the importing States. But it is not so generally true as to render it equitable, that those duties should form the only national fund. When they are paid by the merchant they operate as an additional tax upon the importing State, whose citizens pay their proportion of them in the character of consumers. In this view they are productive of inequality among the States; which inequality would be increased with the increased extent of the duties. The confinement of the national revenues to this species of imposts would be attended with inequality, from a different cause, between the manufacturing and the non-manufacturing States. The States which can go farthest towards the supply of their own wants, by their own manufactures, will not, according to their numbers or wealth, consume so great a proportion of imported articles as those States which are not in the same favorable situation. They would not, therefore, in this mode alone contribute to the public treasury in a ratio to their abilities. To make them do this it is necessary that recourse be had to excises, the proper objects of which are particular kinds of manufactures. New York is more deeply interested in these considerations than such of her citizens as contend for limiting the power of the Union to external taxation may be aware of. New York is an importing State, and is not likely speedily to be, to any great extent, a manufacturing State. She would, of course, suffer in a double light from restraining the jurisdiction of the Union to commercial imposts.

So far as these observations tend to inculcate a danger of the import duties being extended to an injurious extreme it may be observed, conformably to a remark made in another part of these papers, that the interest of the revenue itself would be a sufficient guard against such an extreme. I readily admit that this would be the case, as long as other resources were open; but if the avenues to them were closed, HOPE, stimulated by necessity, would beget experiments, fortified by rigorous precautions and additional penalties, which, for a time, would have the intended effect, till there had been leisure to contrive expedients to elude these new precautions. The first success would be apt to inspire false opinions, which it might require a long course of subsequent experience to correct. Necessity, especially in politics, often occasions false hopes, false reasonings, and a system of measures correspondingly erroneous. But even if this supposed excess should not be a consequence of the limitation of the federal power of taxation, the inequalities spoken of would still ensue, though not in the same degree, from the other causes that have been noticed. Let us now return to the examination of objections.

One which, if we may judge from the frequency of its repetition, seems most to be relied on, is, that the House of Representatives is not sufficiently numerous for the reception of all the different classes of citizens, in order to combine the interests and feelings of every part of the community, and to produce a due sympathy between the representative body and its constituents. This argument presents itself under a very specious and seducing form; and is well calculated to lay hold of the prejudices of those to whom it is addressed. But when we come to dissect it with attention, it will appear to be made up of nothing but fair-sounding words. The object it seems to aim at is, in the first place, impracticable, and in the sense in which it is contended for, is unnecessary. I reserve for another place the discussion of the question which relates to the sufficiency of the representative body in respect to numbers, and shall content myself with examining here the particular use which has been made of a contrary supposition, in reference to the immediate subject of our inquiries.

The idea of an actual representation of all classes of the people, by persons of each class, is altogether visionary. Unless it were expressly provided in the Constitution, that each different occupation should send one or more members, the thing would never take place in practice. Mechanics and manufacturers will always be inclined, with few exceptions, to give their votes to merchants, in preference to persons of their own professions or trades. Those discerning citizens are well aware that the mechanic and manufacturing arts furnish the materials of mercantile enterprise and industry. Many of them, indeed, are immediately connected with the operations of commerce. They know that the merchant is their natural patron and friend; and they are aware, that however great the confidence they may justly feel in their own good sense, their interests can be more effectually promoted by the merchant than by themselves. They are sensible that their habits in life have not been such as to give them those acquired endowments, without which, in a deliberative assembly, the greatest natural abilities are for the most part useless; and that the influence and weight, and superior acquirements of the merchants render them more equal to a contest with any spirit which might happen to infuse itself into the public councils, unfriendly to the manufacturing and trading interests. These considerations, and many others that might be mentioned prove, and experience confirms it, that artisans and manufacturers will commonly be disposed to bestow their votes upon merchants and those whom they recommend. We must therefore consider merchants as the natural representatives of all these classes of the community.

With regard to the learned professions, little need be observed; they truly form no distinct interest in society, and according to their situation and talents, will be indiscriminately the objects of the confidence and choice of each other, and of other parts of the community.

Nothing remains but the landed interest; and this, in a political view, and particularly in relation to taxes, I take to be perfectly united, from the wealthiest landlord down to the poorest tenant. No tax can be laid on land which will not affect the proprietor of millions of acres as well as the proprietor of a single acre. Every landholder will therefore have a common interest to keep the taxes on land as low as possible; and common interest may always be reckoned upon as the surest bond of sympathy. But if we even could suppose a distinction of interest between the opulent landholder and the middling farmer, what reason is there to conclude, that the first would stand a better chance of being deputed to the national legislature than the last? If we take fact as our guide, and look into our own senate and assembly, we shall find that moderate proprietors of land prevail in both; nor is this less the case in the senate, which consists of a smaller number, than in the assembly, which is composed of a greater number. Where the qualifications of the electors are the same, whether they have to choose a small or a large number, their votes will fall upon those in whom they have most confidence; whether these happen to be men of large fortunes, or of moderate property, or of no property at all.

It is said to be necessary, that all classes of citizens should have some of their own number in the representative body, in order that their feelings and interests may be the better understood and attended to. But we have seen that this will never happen under any arrangement that leaves the votes of the people free. Where this is the case, the representative body, with too few exceptions to have any influence on the spirit of the government, will be composed of landholders, merchants, and men of the learned professions. But where is the danger that the interests and feelings of the different classes of citizens will not be understood or attended to by these three descriptions of men? Will not the landholder know and feel whatever will promote or insure the interest of landed property? And will he not, from his own interest in that species of property, be sufficiently prone to resist every attempt to prejudice or encumber it? Will not the merchant understand and be disposed to cultivate, as far as may be proper, the interests of the mechanic and manufacturing arts, to which his commerce is so nearly allied? Will not the man of the learned profession, who will feel a neutrality to the rivalships between the different branches of industry, be likely to prove an impartial arbiter between them, ready to promote either, so far as it shall appear to him conducive to the general interests of the society?

If we take into the account the momentary humors or dispositions which may happen to prevail in particular parts of the society, and to which a wise administration will never be inattentive, is the man whose situation leads to extensive inquiry and information less likely to be a competent judge of their nature, extent, and foundation than one whose observation does not travel beyond the circle of his neighbors and acquaintances? Is it not natural that a man who is a candidate for the favor of the people, and who is dependent on the suffrages of his fellow-citizens for the continuance of his public honors, should take care to inform himself of their dispositions and inclinations, and should be willing to allow them their proper degree of influence upon his conduct? This dependence, and the necessity of being bound himself, and his posterity, by the laws to which he gives his assent, are the true, and they are the strong chords of sympathy between the representative and the constituent.

There is no part of the administration of government that requires extensive information and a thorough knowledge of the principles of political economy, so much as the business of taxation. The man who understands those principles best will be least likely to resort to oppressive expedients, or sacrifice any particular class of citizens to the procurement of revenue. It might be demonstrated that the most productive system of finance will always be the least burdensome. There can be no doubt that in order to a judicious exercise of the power of taxation, it is necessary that the person in whose hands it should be acquainted with the general genius, habits, and modes of thinking of the people at large, and with the resources of the country. And this is all that can be reasonably meant by a knowledge of the interests and feelings of the people. In any other sense the proposition has either no meaning, or an absurd one. And in that sense let every considerate citizen judge for himself where the requisite qualification is most likely to be found.

PUBLIUS

## FEDERALIST No. 36. The Same Subject Continued (Concerning the General Power of Taxation)

### From the New York Packet. Tuesday, January 8, 1788.

HAMILTON

To the People of the State of New York:

We have seen that the outcome of the arguments discussed in the previous number is that, due to the natural differences of interests and perspectives among the various classes of the community, whether the people's representation is larger or smaller, it will consist primarily of landowners, merchants, and members of the learned professions. These groups will truly represent all those different interests and perspectives. If anyone objects that we have seen men from other backgrounds in the local legislatures, I answer that while we admit exceptions to the rule, these are not numerous enough to affect the overall nature or character of the government. Strong minds exist in every walk of life who will rise above their circumstances and earn the recognition they deserve not only from their own class but from society as a whole. The opportunity should be equally available to everyone; and I trust, for the honor of human nature, that we will see such exceptional individuals thrive in federal as well as State legislation. However, occasional examples of this type do not weaken the argument based on what generally happens.

The subject could be considered from other perspectives that would lead to the same conclusion; in particular, one might ask, What greater connection or community of interest can be imagined between a carpenter and a blacksmith, and a linen manufacturer or stocking weaver, than between a merchant and any of them? It is well known that there is often as much rivalry between different branches of the mechanical or manufacturing trades as there is among the various kinds of labor and industry; so, unless the number of representatives was vastly larger than would be consistent with good order or wise deliberation, it is impossible for the objection we are considering to ever occur in practice. But I will not focus further on a point that has so far been too vaguely stated to allow even a careful examination of its true nature or effect.

There is another objection, more precisely defined, that deserves attention. It has been claimed that a power of internal taxation by the national legislature could never be effectively used, both because of a supposed lack of proper knowledge of local matters and because it might interfere with the revenue laws of the Union and the individual States. The idea that there would be a lack of proper knowledge is entirely unfounded. If a State legislature has a question about a particular county that requires local knowledge, how is that information obtained? Without doubt, from the members representing that county. Can't the same kind of knowledge be brought to the national legislature by the representatives from each State? And isn't it reasonable to assume that those sent will generally possess the intelligence needed to share such information? Is "knowledge of local circumstances," in terms of taxation, merely a detailed awareness of all the mountains, rivers, streams, highways, and bypaths in each State; or, rather, a general understanding of its situation and resources, the state of its agriculture, commerce, and industries, what goods it produces and uses, and the different amounts and kinds of its wealth, property, and labor?

Nations generally, even those with more popular forms of government, usually assign the management of their finances to either individual persons or to small boards, who initially prepare tax plans that are later enacted by the ruler or legislature.

Everywhere, inquisitive and enlightened statesmen are seen as best suited to choose which items are most fit to be taxed—a clear sign, as far as the judgment of mankind has influence, of the kind of local knowledge actually needed for taxation.

Taxes falling under the general category of internal taxes can be split into two types: DIRECT and INDIRECT taxes. While objections apply to both, the arguments tend to focus more on the former. Indeed, as to indirect taxes—which include duties and excises on consumer goods—it is hard to imagine what real difficulties have been feared. The knowledge needed for these taxes is either obvious based on the item being taxed or easily obtained from any well-informed individual, especially one involved in commerce. The differences between States as to such taxation will be few, straightforward, and easy to understand. The main thing needed would be to avoid taxing items already set aside for a particular State's use, and this would be simple to learn from State laws and the representatives themselves.

When it comes to taxes on real property—houses and lands—the objection at first seems stronger, yet does not hold up to close scrutiny. Land taxes are usually levied in one of two ways: by actual valuations, permanent or periodic, or by occasional assessments decided by appointed or elected officers. In either case, the only people who need a detailed knowledge of local conditions are those tasked with carrying out these assessments—commissioners or assessors chosen for that purpose. The law simply needs to set out how these people are selected, their numbers and qualifications, and what their powers and responsibilities are. Is there anything in this process that a national legislature can't do just as well as a State legislature? Both are limited to setting general principles; local details, as already noted, must be handled by those carrying out the law.

But there is an even simpler way to look at this that should be completely satisfying. The national legislature could use the SYSTEM OF EACH STATE WITHIN THAT STATE. The approach to levying and collecting these types of taxes in each State could, in all aspects, be used by the federal government.

Remember that the amounts of these taxes are not left to the national legislature's discretion, but are determined by the population of each State, as described in the second section of the first article. A real census, or count, of the people must provide the rule, which prevents partiality or oppression. The risk of abuse in this power is addressed with considerable caution. Additionally, there is a requirement that "all duties, imposts, and excises shall be UNIFORM throughout the United States."

As several advocates of the Constitution have rightly noted, if it turns out in practice that federal internal taxation is inconvenient, the federal government can always choose not to use it, and instead rely on requisitions. Some have then triumphantly asked, "Why not, from the start, leave out that uncertain power and depend on requisitions alone?" Two strong answers can be given. First, using that power, if it's practical, is better because it is more effective; and it cannot be proved, except by actually trying it, that it cannot work well. In fact, it is more likely to succeed. The second answer is that having such a power in the Constitution will encourage States to respond to requisitions, since they know the Union could act on its own without their help.

Regarding concerns that federal and State revenue laws might conflict, we have already seen that there can be no legal conflict or contradiction of authority. The laws, in that sense, cannot interfere; and it is not at all impossible to avoid any conflict, even in the policies of their different systems. An effective way to avoid such problems is for both sides to refrain from taxing objects already chosen by the other. Since neither can CONTROL the other, both have a clear and practical interest in this mutual restraint. When the individual debts of the States are gone and spending is kept within its natural limits, any possibility of interference will almost disappear. A small land tax will be enough for the States and is their simplest and best resource.

Many scarecrows have been raised regarding this power of internal taxation, meant to alarm the people: the threat of double sets of revenue officers, double taxation, and the imposing spectre of unfair and harsh poll taxes, all presented with political sleight of hand.

On the first point, there are two cases where double sets of officers simply cannot occur: first, when the right to impose the tax belongs exclusively to the Union, such as duties on imports; second, when something has not already been taxed or regulated by a State, which applies to many possible items. In other cases, the United States will likely either avoid items already being used for local taxes, or will use State officers and regulations to collect the extra federal tax. This will serve revenue needs best, because it will save collection costs and minimize irritation of State governments and the people. In any case, here is a workable way to avoid such problems; all that is needed is to show that the predicted evils do not necessarily follow from the plan.

As to arguments about a supposed system of influence, it is enough to respond that this should not be assumed; but the idea can be answered more specifically. If such a spirit were to infect the councils of the Union, the surest path for it would be to rely on State officers, offering them more pay, and so shifting State influence into the channels of federal government, instead of federal influence opposing State interests. Still, such assumptions are unjust and should not affect consideration of this important question. They only serve to obscure the truth.

Regarding the suggestion of double taxation, the answer is clear. The Union's needs must be supplied one way or another; if by the authority of the federal government, then not by that of the States. The total taxes paid by the community will be the same either way; with the advantage that, if the federal government manages the process, it can make much greater use of the main source of revenue—commercial imposts—which is the most convenient type of tax, and so will lessen the need for more troublesome taxes. Furthermore, since difficulties might arise in using internal taxes, the government will be more careful in selecting and arranging them; making it a policy to use the wealth of the rich to benefit the public treasury, reducing the need for taxes that might upset the poorer and more numerous classes. It is a happy situation when the government’s interest in maintaining its own power agrees with a fair distribution of public burdens and helps protect the weaker members of the community from oppression!

When it comes to poll taxes, I freely admit that I disapprove of them; and though they have long existed in those States(1) most protective of their rights, I would regret their use under the national government. But does the existence of the power to levy them mean they will necessarily be used? Every State in the Union has the power to levy such taxes; yet in several States they are not actually used. Are the State governments labelled tyrannical because they possess this power? If not, how can the same power be grounds to accuse the national government or reason to oppose adoption of the Constitution? As much as I dislike this type of tax, I firmly believe that the option to use it should remain with the federal government. Sometimes, in national emergencies, measures that are otherwise inappropriate become essential for public safety. Because such emergencies are possible, the government should always have the necessary means. The real lack of suitable sources of revenue in this country is, in fact, a special reason not to restrict the powers of the national legislature in this way. Some critical, stormy times might arise when a poll tax could be an invaluable resource. And since nothing guarantees this country immunity from calamities experienced elsewhere, I do not support any proposal that would deprive the government of any tool that could possibly be needed for the nation's defense and security.

(I have now finished examining the powers proposed to be given to the United States that can be seen as directly connected to the government's strength. I have tried to address the main objections raised against them. I have intentionally left out those lesser authorities that are either too trivial for the opponents of the Constitution to bother with, or so clearly appropriate that there can be no reasonable dispute. The body of judicial power, however, could have justified examination under this topic, except that its organization and scope are more effectively considered together. For this reason, I have chosen to discuss it in the next section of our inquiry.)(E1)

(I have now reviewed those powers proposed to be given to the federal government that relate primarily to its strength and its ability to achieve the important goals of the union. There are others which, although not covered here, will be considered under the next section to provide a more complete view of the subject. I hope that the progress we have made so far is enough to convince the honest and thoughtful members of the community that some of the most forceful objections to the Constitution, which seemed most serious at first, are not only baseless, but would have rendered the plan incapable of securing public happiness and national prosperity if they had been adopted. I am also hopeful that a further and deeper examination of the system will make it even more appealing to every genuine and impartial supporter of good government, and will leave those individuals certain of the wisdom and necessity of adopting it. It will be a great day for us, and even more so for all humanity, if we have the wisdom and virtue to set such a shining example for the world!)(E1)

PUBLIUS

1. The New England States.

E1. Two versions of this paragraph appear in different editions.

## FEDERALIST No. 37. Concerning the Difficulties of the Convention in Devising a Proper Form of Government.

### From the Daily Advertiser. Friday, January 11, 1788.

MADISON

To the People of the State of New York:

IN REVIEWING the defects of the existing Confederation, and in showing that they cannot be fixed by a government any weaker than the one now proposed, several of the most important principles of the new system naturally came up. But since the ultimate purpose of these papers is to clearly and thoroughly evaluate the merits of this Constitution, and the wisdom of adopting it, our analysis will not be complete without a closer and fuller review of what the convention produced—examining it from every angle, comparing all its parts, and considering its likely effects. For this last part of our task to be carried out with the right mindset for fair judgement, there are a few thoughts we must consider now, which basic fairness suggests.

It is an unfortunate reality, unavoidable in human affairs, that public measures are rarely evaluated with the level-headedness so necessary for a fair assessment of how they might help or hurt the public good; and this kind of moderation is often lacking, especially in situations which require it most. Anyone with experience in considering this issue won’t find it surprising that the convention’s work—recommending significant changes and innovations, open to interpretation in so many ways, and affecting so many passions and interests—would provoke attitudes on both sides that are not open to fair discussion or honest judgment. Some have made it all too clear in their own writings that they view the proposed Constitution not just with an inclination to criticize, but a predetermined intent to condemn; while the writings of others reveal an opposite bias, which makes their opinions just as questionable. In equating these different types as equally untrustworthy concerning their opinions, I do not mean to suggest there may not be an important difference in their motives. It is fair to note, concerning the latter group, that everyone admits our situation is especially urgent and that something must be done; this may explain their predetermined support for what has been proposed, as much as any less admirable reason. The predetermined opponent, on the other hand, cannot have been motivated by any such reasonable view. The supporters’ motives may be upright—or possibly not. The adversaries’ motives must be wrong. However, these essays are not meant for people of either sort. They are written for those who, along with sincere zeal for their country’s happiness, are open-minded enough to fairly judge the ways to achieve it.

People of this sort will approach the convention’s proposed plan not just without looking for faults or exaggerating them; they will recognize it’s reasonable to expect that a perfect plan was impossible. And they will be just as ready to accept that any errors should be excused because the convention, after all, was made up of people—and that in judging the opinions of others, they themselves must also remember they are not infallible.

In the same way, it will be clear that, beyond these bases for fairness, we should make many allowances for the difficulties built into the very nature of the convention’s work.

The novelty of the task stands out at once. These papers have shown that the existing Confederation is based on flawed ideas; therefore, we must change not only the foundation, but the structure built on it. It's also been shown that the other confederacies we might look to as examples were troubled by the same errors, and can only serve as warnings to avoid their mistakes, not as guides showing the right direction. In these circumstances, the best the convention could do was to avoid past mistakes, learned both from other nations and from our own, and to give us a way to correct their own future mistakes as time and experience reveal them.

One of the main challenges facing the convention was combining the needed stability and energy in government with the essential protection of liberty and the republican form. Without truly succeeding at this, they would have failed to fulfill the purpose of their appointment or the public’s expectations. But no one who understands the issue would deny how hard this was. Energy in government is key for protecting against both external and internal threats, and for prompt and effective carrying out of laws—all the things that define good government. Stability is just as important for the nation’s reputation, for the advantages connected to it, and for the public’s confidence and sense of security—key blessings of civil society. Irregular and ever-changing laws are not just a practical harm, they are hated by the people; and we can be sure that, in this country, where people are knowledgeable about government and have a personal stake in how it works, there won’t be satisfaction until these uncertainties and changes typical of State governments are fixed. Yet, once we compare these ingredients to the basic principles of liberty, we instantly see how hard it is to blend them in the right amounts. Republican liberty seems to demand, not only that all power comes from the people, but that those entrusted with it serve for only short periods and that their power is divided among several people. Stability, in contrast, requires that those holding power remain in office for longer periods. Frequent elections mean frequent changes in officeholders, and frequent changes in policies result from frequent changes in officials; while government energy needs not only some duration of authority, but that authority to be executed by a single hand.

How well the convention accomplished this part of their work will be clearer as we examine it further. Even this brief look shows it to have been a difficult matter.

Just as challenging was the task of correctly drawing the line between the authority of the federal government and that of the State governments. The more a person has studied and distinguished between large and complicated issues, the more he will sense this difficulty. Even the faculties of the human mind have never yet been separated and described with truly satisfying accuracy, despite the efforts of the most perceptive philosophers. Sense, perception, judgment, desire, willpower, memory, imagination—they all have boundaries so subtle and gradual that even the sharpest minds cannot perfectly separate them; and disputes about these boundaries are endless and complex. Similarly, the boundaries between the great domains of nature, and even more so among the sub-domains within them, illustrate this same truth. Even the most accomplished naturalists have never fully succeeded in drawing a certain line separating the realm of plant life from neighboring nonliving matter, or in marking where vegetation ends and the animal kingdom begins. The individual qualities distinguishing items within each major area of nature are even more obscure.

When we move from the works of nature, where all boundaries are perfectly real and are only unclear because of our limited perception, to creations of man—where the problem lies with both the thing itself and our ability to understand it—we must further lower our expectations for what human intelligence can do. Experience shows us that no amount of expertise in the science of government has enabled anyone to clearly and certainly separate and define its three main branches—legislative, executive, and judiciary—or even the rights and powers belonging to the different branches of the legislature. Questions come up all the time in practice showing how unclear these matters are, confusing even the best political thinkers.

Centuries of experience and the combined work of the brightest lawmakers and legal scholars have not succeeded in clearly outlining the separate objects and boundaries of different codes of law or different courts of justice. The exact edges of common law, statute law, maritime law, ecclesiastical law, the law of corporations, and other local customs and laws still aren’t fully or finally determined even in Great Britain, where accuracy in such topics is pursued more seriously than anywhere else. The jurisdiction of her various courts—whether general or local, of law, equity, admiralty, etc.—remains a frequent subject of thorny debate, making clear just how uncertain their limits really are. Even new laws, though written with the greatest technical care and after thorough debate, are thought to be somewhat unclear and uncertain until ongoing discussion and judicial decisions settle their true meaning. Besides the confusion that comes from the complexity of the topics and our own imperfect abilities, the very means by which we communicate ideas brings a new problem. Words are used to express ideas. For clarity, not only must the ideas themselves be clear, but the words must fit them precisely. But no language is rich enough for every new, complex idea, or so perfect that its words are not sometimes ambiguous or used for different ideas. So, even if the actual differences are real and well-considered, their explanation can be made unclear by the language used. This kind of unavoidable imprecision grows with the novelty and complexity of the concepts described. Even when the Almighty addresses mankind in our own language, His message, as bright as it must be, is dimmed and made uncertain by the cloudiness of our means of understanding it.

There are then three sources of vague and unclear definitions: the inherent confusion of the subject, the limitations of human understanding, and the inadequacy of language itself. Any of these would create some vagueness. In drawing the boundaries between federal and State powers, the convention no doubt had to deal with all three.

To the difficulties already mentioned, we must add the competing claims of the larger and smaller States. We cannot go wrong in assuming that the larger States would insist on participating in the government in direct proportion to their greater wealth and significance, while the smaller States would be just as determined to hold on to the equality they currently enjoy. It is reasonable to suppose that neither side would fully yield to the other, so the conflict could only end in compromise. It is also highly likely that once the ratio of representation was settled, this very compromise would have caused another struggle between the same parties—to shape the organization of the government and assign powers so as to increase the importance of those branches in which they had secured the most influence. There are aspects of the Constitution that confirm these assumptions, and, to the extent that either is well founded, this shows the convention had to sacrifice theoretical ideals in the face of external pressures.

Nor could it have been only the large and small States who would align themselves against each other on various issues. Other alliances, based on local position and policy differences, must have created further difficulties. Just as every State can be divided into districts and its citizens into different classes—leading to internal rivalries and competing interests—so too are the different regions of the United States separated by a mix of circumstances that have similar effects, but on a broader scale. And although this diversity of interests, for reasons fully explained in an earlier paper, may have a healthy impact on the functioning of the government once established, everyone must recognize the opposite effect they must have had during the drafting of it.

Is it really surprising if, under all these pressures, the convention was forced into some departures from the artificial structure and perfect symmetry that an idealist, viewing the subject in the abstract, might have designed for a Constitution drawn up in his study or imagination? The real marvel is that so many obstacles were overcome—and with a spirit of unity almost as unprecedented as it was unexpected. No honest person can think about this without feeling some astonishment. And anyone inclined to see events in a spiritual light must see evidence of that Almighty hand, which has been repeatedly and obviously extended to help us during critical times in the revolution.

In an earlier paper, we mentioned the repeated and failed attempts in the United Netherlands to reform the well-known and destructive flaws of their constitution. The history of almost all important human councils and conventions aimed at reconciling differing opinions, easing mutual suspicions, and balancing competing interests is a story of factions, disputes, and disappointment—some of the darkest and most discouraging examples showcasing human weakness and depravity. If, in a few isolated instances, a more positive picture appears, such cases only serve as exceptions, reminding us of the general rule—and their brightness only makes the surrounding gloom seem deeper by contrast. Thinking about why these rare successes happen, and applying those reasons to our own case, leads to two major conclusions. First, the convention must have enjoyed an unusually strong immunity from the corrupting influence of party spirit—the affliction most common to deliberative bodies and most likely to poison their proceedings. Second, that all the delegations in the convention were made content by the outcome, or else persuaded to accept it out of a sincere belief that sacrificing personal opinions and partial interests for the common good was necessary—or from despair that delaying or trying new experiments would make this sacrifice less necessary.

## FEDERALIST No. 38. The Same Subject Continued, and the Incoherence of the Objections to the New Plan Exposed.

### From The Independent Journal. Saturday, January 12, 1788.

**MADISON**

To the People of the State of New York:

IT IS noteworthy that in every instance recorded by ancient history, when a government was carefully formed with the people's consent, the task of drafting it was not left to an assembly of men, but was carried out by a single citizen of exceptional wisdom and proven integrity.

We learn that Minos was the original founder of Crete's government, just as Zaleucus was of the Locrians. Theseus, and later Draco and Solon, set up the government of Athens. Lycurgus was Sparta's lawgiver. Romulus laid the foundations of Rome’s earliest government, which his two elected successors, Numa and Tullius Hostilius, then completed. When the monarchy was abolished, Brutus replaced it with the consul system—introducing a reform he claimed had been prepared by Tullius Hostilius, which his leadership persuaded both senate and people to approve and ratify. This pattern holds for confederate governments as well. We’re told Amphictyon created the government that bore his name. The Achaean league began with Achaeus, and was revived by Aratus.

We can't always determine exactly how much involvement these legendary lawmakers had in their respective systems, or how far they acted with the full authority of the people. In some cases, though, the process was strictly proper. Draco seems to have been entrusted by the people of Athens with unlimited power to reform their government and laws. And according to Plutarch, Solon was practically forced, by the universal vote of his fellow citizens, to take on the sole, absolute role of redesigning their constitution. The process under Lycurgus was less regular, but as much as those who wanted orderly reform prevailed, they all looked to the single efforts of that great patriot and wise man, rather than trying to bring about a revolution by means of a legislative assembly.

Why would a people as cautious about their freedom as the Greeks have so far abandoned prudent rules as to entrust their fate to a single citizen? Why would the Athenians—a people who wouldn't let their army be commanded by fewer than ten generals, and needed no greater proof of a threat to their liberty than one of their citizens being exceptionally distinguished—consider one renowned citizen to be a better trustee of their own and their descendants' fortunes than a selected group of citizens, from whose collective deliberations more wisdom and safety could be expected? We can't fully answer these questions except by presuming that the fear of discord and disunity among many counselors outweighed the fear of betrayal or incompetence by any one man. History also tells us about the obstacles these famous reformers faced and the measures they took to make their changes successful. Solon, who followed a more flexible approach, confessed he hadn’t given his people the government that would make them happiest, but only what was most tolerable considering their prejudices. Lycurgus, more committed to his vision, had to mix force with the authority of superstition, and cement his accomplishment by willingly exiling himself, then ending his life. If these lessons teach us, on one hand, to admire the progress America has made over ancient methods of preparing and establishing government plans, they also, on the other hand, warn us of the risks and challenges involved in such experiments, and of the great folly of increasing them more than necessary.

Is it unreasonable to suspect that any errors in the convention’s plan are less the result of sloppy investigation or carelessness, and more the result of a lack of previous experience in handling such a complex and challenging subject—and, as such, are errors that won’t be revealed until they are tested in practice? Many general considerations, as well as the specific example of the Articles of Confederation, make this suspicion likely. It’s worth noting that among the many objections and amendments suggested by the different States when these articles were presented for their approval, not a single one addressed the major and fundamental flaw that has since been exposed in practice. And, except for the objections New Jersey made—arising more from her situation than particular foresight—it’s open to question if any suggestion was important enough to justify reworking the system. Still, there’s plenty of reason to believe that, as trivial as these objections were, some States would have stubbornly clung to them, had their enthusiasm for their opinions and supposed interests not been overpowered by the stronger feeling of self-preservation. One State, let us recall, resisted for several years, refusing to agree even as the enemy remained at our doors, or rather, deep within our own borders. And her yielding, in the end, was motivated by nothing less than the fear of being blamed for prolonging public hardship and risking the outcome of the conflict. Every fair-minded reader can draw the right conclusions from these facts.

A patient whose illness keeps worsening—and who realizes that delay in using an effective remedy will soon be deadly—considers his situation, thinks about different doctors, and calls in those he believes best qualified and most trustworthy. The doctors gather, carefully study the case, consult together, and all agree that the situation is critical, but, with the proper and timely treatment, the case is far from hopeless and may, in fact, lead to improved health. They also unanimously prescribe a specific remedy for this hoped-for outcome. But as soon as the prescription is announced, several people interfere, warning the patient (without disputing his illness or its danger) that the remedy will be fatal for him, and forbidding him, on pain of certain death, to try it. Shouldn’t the patient, before listening to this advice, at least ask that its authors agree on some other substitute remedy? And if he finds that they disagree with each other as much as with his original physicians, wouldn’t he be wise to try the unanimously recommended treatment, rather than listen to critics who cannot even agree among themselves on what to do?

America is just such a patient in just such a situation. She knows she’s unwell. She has received careful and unanimous advice from people of her own deliberate choosing. And she is now warned by others not to follow this advice, under threat of the direst consequences. Do those giving warnings deny her real danger? No. Do they deny the need for a prompt and strong remedy? No. Are they agreed—are even two of them agreed—in their objections to the proposed cure or on what should replace it? Let them speak for themselves. One insists the proposed Constitution must be rejected because it is not a confederation of States, but a government over individuals. Another concedes that government over individuals is appropriate—to a point—but not to the degree proposed. A third does not object to a government over individuals, nor to its extent, but to the lack of a bill of rights. A fourth says a bill of rights is absolutely necessary, but it should declare, not the rights of individuals, but the rights the States have reserved as political entities. A fifth believes any kind of bill of rights would be unnecessary and out of place, and except for the power to set times and places for elections, would find no fault with the plan. An objector from a large State loudly protests the unfair equality of representation in the Senate; an objector from a small State is just as vocal about the dangerous inequality in the House of Representatives. In one region, people are alarmed at the supposed expense caused by the number of officials required for the new government. Elsewhere—or even from the same place, at another time—they complain that Congress will be little more than a token representation, and say the government would be much better if both membership and expense were doubled. A patriot in a State that neither imports nor exports sees insurmountable problems with the power of direct taxation. A patriotic critic in a State with heavy imports and exports is just as unhappy that taxes might fall mainly on consumption. This politician perceives in the Constitution a direct and unstoppable drift toward monarchy; another is just as certain it will become an aristocracy. A third cannot say which way it will go, but insists it will become either one or the other; and a fourth, with equal confidence, asserts the Constitution is so far from tending in either direction, that it will be too weak to resist the opposite dangers. Other critics say the legislative, executive, and judiciary branches are mixed together so much as to break every rule of proper government and all essential safeguards for liberty. But while this objection is spread in broad, general terms, few specifically support it. Get everyone to explain their own concerns, and you’ll find almost no two agree. One thinks the flaw is letting the Senate and President share the responsibility of appointing officers, instead of assigning it solely to the Executive. Another objects to excluding the House of Representatives, whose larger membership would better guard against corruption and favoritism. Another says giving the President any share of this appointment power—which is always dangerous in the hands of the executive branch—is a terrible violation of the basic rules of republican caution. For some, the most unacceptable feature is Senate trials for impeachments, since the Senate belongs both to the legislative and executive branches, when, so they argue, this job so clearly belongs to the judiciary. “We fully agree,” others reply, “that this is a problem, but we cannot accept shifting impeachments to the judiciary as the solution. Our main objection is the extensive powers the judiciary has been given.” Even among the strongest advocates for a council of state, there are irreconcilable disagreements about how it ought to be formed. One insists the council should be small and chosen by the larger house of the legislature; another wants a larger council, and sees it as critical that the President personally make the appointments.

So as not to upset the critics of the federal Constitution, let us suppose that they are both the most passionate and the most insightful critics—and that they believe the recent convention failed in its mission and that a wiser, better plan must and can be created. Suppose, further, that the country agrees with both their glowing view of themselves and their harsh view of the convention, and decides to form them into a second convention, fully empowered, for the express purpose of revising and reshaping the first draft. Were that experiment to occur—though it strains plausibility even in imagination—I leave it to be judged, based on the examples above, whether these new reformers would, despite their scorn for their predecessors, differ from them in any way but the confusion and strife that would mark their proceedings. And whether the present Constitution before the public would not be just as likely to last as long as Sparta’s, which Lycurgus said could not be changed “until his own return from exile and death”—if the Constitution were simply adopted at once and allowed to stand, not until a BETTER, but until ANY OTHER were agreed on by this new body of lawmakers.

It is both surprising and unfortunate that those who put forth so many arguments against the new Constitution rarely remember the flaws of the one it will replace. The new Constitution need not be perfect; it only needs to be better than the one in place. No man would refuse to trade bronze for silver or gold just because the gold or silver was not pure. No one would refuse to leave a broken-down house for a sturdy, comfortable one simply because the new one lacked a porch, or because some rooms were a little larger or smaller or the ceilings a bit different than one might imagine. But to look past such comparisons—isn’t it clear that most of the major criticisms leveled against the new system apply with even more force to the existing Confederation? Is it dangerous to give the central government unlimited power to raise money? The current Congress can make unlimited demands, and the States are constitutionally required to meet them; Congress can print limitless paper money; they can borrow at home and abroad as long as anyone will lend them a shilling. Is unlimited authority to raise troops dangerous? The Confederation grants Congress that power too, and they have already begun to use it. Is it unsafe to combine all the powers of government in the same group of people? Congress, a single chamber, holds all federal authority. Is it especially dangerous to give control of both the treasury and the army to the same group? The Confederation does just that, placing both firmly in Congress’s hands. Is a bill of rights essential? The Confederation has no bill of rights. Is it bad that the new Constitution lets the Senate, with the Executive, make treaties that become law? The current Congress—without sharing the power—can make treaties that they themselves have said, and most States have accepted, are the supreme law of the land. Is the importation of slaves allowed for twenty years by the new Constitution? Under the old it is permitted indefinitely.

I’ll be told that, even if this mixing of powers is dangerous in theory, it is harmless in practice because Congress is dependent on the States for what it needs to take any action; that no matter how many powers Congress is given, they are worthless without enforcement. In that case, I respond:first, that the Confederation is even more foolish for insisting some federal powers are absolutely necessary while making them completely ineffective, and second, that if the Union is to survive and no better government is found, Congress will have to be given, or will have to seize, real authority—so my earlier comparisons will remain valid. But there’s more. From this powerless system, a new power has emerged, one that threatens to fulfill every worry about a weak structure for the Union’s supreme government. It is now accepted, not just as hope, but as fact, that the Western territories are a source of immense wealth for the United States; and even though these territories can’t immediately solve our problems or provide steady revenue for public expenses, they will eventually, if handled right, help pay off the domestic debt and supply substantial funds to the federal treasury for some years. Individual States have already given up a large share of this resource, and it’s reasonable to expect that the remaining States won’t refuse to show similar fairness and generosity. Therefore, we can expect that a large and rich territory, equal in size to the populated United States, will soon become national property. Congress has taken control of this property. They have started to use it productively. Congress has assumed even more: they have begun to form new States, establish temporary governments, appoint officials, and lay out the terms on which such States will join the Union. All this has been done—and done without any constitutional authority. Yet not a whisper of criticism; not a hint of alarm has been raised. A huge and independent source of revenue is being handed to a single body of men who can raise troops without limit and spend funds to support them for whatever length of time they wish. And still, there are people who have not only watched this happen without complaint, but who actually defend the system responsible for it—and at the same time, criticize the new system for the very flaws they ignore in the old one. Wouldn’t they be more consistent to support setting up the new Constitution, since it’s just as important for protecting the Union from the future power and resources of a body like the current Congress as it is for defending against the present weakness of that body?

I do not mean, by anything I’ve said, to blame Congress for their actions. I know they had little choice. The public good and the necessity of the situation forced them to stretch their constitutional limits. But doesn’t the fact show how dangerous it is to have a government without clear, adequate powers to accomplish its aims? Such a system is always at risk of either falling apart or grabbing power for itself.

**PUBLIUS**

## FEDERALIST No. 39. The Conformity of the Plan to Republican Principles

### For the Independent Journal. Wednesday, January 16, 1788

**MADISON**

To the People of the State of New York:

The last paper concluded the observations intended to introduce a fair review of the plan of government proposed by the convention. We now move on to carry out that part of our task.

The first question that arises is whether the general form and appearance of the government are truly republican. Clearly, no other form would suit the character of the American people, the fundamental principles of the Revolution, or the honorable resolve that inspires every lover of liberty to base all political experiments upon mankind’s ability for self-government. If the convention’s plan is found to stray from the republican model, its supporters must abandon it as indefensible.

What, then, are the defining features of a republican government? If we look for an answer not by returning to principles, but by examining how political writers have applied the term to various state constitutions, we would never find a satisfactory conclusion. Holland, where not a single part of the supreme authority is derived from the people, has been almost universally called a republic. The same title has been given to Venice, where a small group of hereditary nobles exercise absolute power over the larger population. Poland, a mix of aristocracy and monarchy in their worst forms, has been similarly labeled. Even England, which has one republican branch combined with a hereditary aristocracy and monarchy, has often—wrongly—been listed among republics. These examples, which are as different from each other as from an actual republic, show just how inaccurately the term has been used in political discussions.

If we look for a standard in the principles on which different forms of government are based, we may define a republic as a government that derives all its powers, either directly or indirectly, from the broad public, and is administered by people holding their offices at the pleasure of the people, for a set term, or for as long as they maintain good behavior. It is ESSENTIAL to such a government that it be derived from the great body of society, not from a small segment or privileged class; otherwise, a handful of tyrannical nobles could claim to be republicans and call their government a republic. It is SUFFICIENT for such a government that its officials are appointed, directly or indirectly, by the people, and that they hold their posts under one of the previously mentioned terms; otherwise, every government in the United States, and any other well-designed or well-run popular government, would lose its republican status. In every state's constitution, some government officials are appointed only indirectly by the people. In most cases, the chief magistrate is chosen this way. And in one case, this method is used for one branch of the legislature. In all state constitutions, the highest offices are limited to fixed terms, and in many cases, within the legislative and executive departments, these terms last for a number of years. In most state constitutions, as in the generally accepted views on the subject, judges are to hold their posts based on good behavior.

Comparing the Constitution created by the convention to this standard, we can see that it fits the description in the strictest sense. The House of Representatives, like at least one branch of every state legislature, is elected directly by the people. The Senate, like the current Congress and the Senate of Maryland, is appointed indirectly by the people. The President is also indirectly chosen by the people, following the pattern of most states. Even the judges and other federal officers, as in the states, will be the people's choice, although a more distant one. The duration of appointments is also consistent with the republican model and with state constitutions. The House of Representatives is chosen at regular intervals in all states, and in South Carolina, the term is also two years. The Senate is elected for six years, only one year longer than the Senate of Maryland, and two years longer than those of New York and Virginia. The President will serve for four years; in New York and Delaware, the chief magistrate serves three years, and in South Carolina, two years. In the other states, the election is annual. In several states, though, there is no constitutional provision for impeaching the chief magistrate. In Delaware and Virginia, he cannot be impeached until after leaving office. The President of the United States may be impeached at any time while in office. The judges are to serve according to good behavior, as they certainly should. The tenure of most ministerial offices will be set by law, in line with the logic of the situation and the example of the state constitutions.

If any further evidence of this system’s republican nature were needed, the strongest proof lies in its absolute ban on titles of nobility under both federal and state governments, and in its explicit guarantee of a republican form of government for each state.

“But it was not enough,” say critics of the proposed Constitution, “for the convention to stick to the republican form. They should have been equally careful to preserve the FEDERAL form, which treats the Union as a CONFEDERACY of sovereign states; instead, they have created a NATIONAL government, treating the Union as a CONSOLIDATION of the States.” And they ask, on what authority was this bold and radical change made? The importance given to this objection demands it be examined carefully.

Without questioning the accuracy of the distinction on which the objection is based, we must to fairly assess its weight, first, determine the true nature of the proposed government; second, examine to what extent the convention was authorized to propose such a government; and third, consider how the duty owed to their country could make up for any lack of formal authority.

First. To determine the real character of the government, it can be viewed in relation to its foundation; the sources from which it draws its usual powers; the way those powers are carried out; their scope; and the authority by which future changes may be made.

Looking at the first aspect, we see, on one side, that the Constitution will be based on the approval and ratification of the American people through deputies elected for that purpose; but on the other side, this assent and ratification will not be given by the people as individuals forming one nation, but rather as members of the separate and independent States to which they belong. It will be the assent and ratification of each state, coming from its ultimate authority—the authority of the people themselves. The act establishing the Constitution, therefore, will not be a NATIONAL act, but a FEDERAL one.

That it is a federal and not a national act, in the sense used by the critics—that it is the act of the people as independent states, not as one combined nation—is obvious from this: it does not depend on a MAJORITY vote of the people of the Union, or of the States. Instead, it must result from the UNANIMOUS agreement of all states involved, differing only in that the consent is expressed directly by the people and not by the legislature. If the people were treated as one unified nation, then the will of the majority of all the people in the United States would dictate to the minority, just as within any single state. This majority could be determined by counting votes of all individuals, or by counting the states' majority as reflecting the people's majority. Neither method is used here. Each state, when ratifying the Constitution, acts as a sovereign entity, acting only for itself and only bound by its own voluntary decision. In this respect, if the new Constitution is adopted, it will be a FEDERAL, not a NATIONAL, constitution.

The next aspect is the sources from which the government's normal powers come. The House of Representatives draws its powers from the people of America and represents them in proportion and in principle just as the legislature of a state represents its people. In this way, the government is NATIONAL, not FEDERAL. Conversely, the Senate draws its powers from the states, as equal political bodies. The states are represented equally in the Senate, just as they are in the current Congress. In this respect, the government is FEDERAL, not NATIONAL. The executive power comes from a very mixed source. The President is initially elected by the States in their political character. The votes assigned to each state are based partly on them being separate societies and partly on their size as members of a larger society. If the election goes to the legislature, the national representatives act as delegations from their distinct state bodies. From this perspective, the government is a blend, showing at least as many FEDERAL as NATIONAL characteristics.

The distinction between a federal and national government, when it comes to HOW THE GOVERNMENT FUNCTIONS, is usually seen this way: in the former, power affects the political bodies forming the Confederacy; in the latter, it acts directly on citizens as individuals. If the Constitution is judged by this standard, it appears to be more NATIONAL than FEDERAL, although perhaps not entirely so. In some cases, particularly when it comes to disputes involving states, they must be treated as political entities. In this respect, the national nature of the government is mixed with some federal characteristics. Yet, this is perhaps unavoidable, and the fact that, in most cases, the government directly affects the people, defines it, in this respect, as a NATIONAL government.

But if the government is national in how its powers function, its character shifts again when we consider the RANGE of its power. A national government involves not only authority over individual citizens but also unlimited supremacy over all matters of lawful government. In a unified nation, this is completely held by the national legislature. Where communities are joined for specific purposes, general and local legislatures each hold part of the supreme power. In the former, local authorities are entirely subject to the supreme authority and can be controlled or eliminated at will. In the latter, local authorities are independent within their spheres, just as the general authority is within its own. In this respect, the proposed government cannot be called a NATIONAL one, since it only covers certain listed matters and leaves the states with full and secure power over everything else. True, disputes about the boundary between federal and state powers are to be settled by a tribunal under the federal government. But this does not change the principle. The decision will be made impartially, according to the Constitution’s rules, with strong safeguards to ensure fairness. Some such tribunal is clearly needed to avoid resorting to violence or dissolving the Union; and it makes sense for it to be established by the general government rather than by local ones, and, more accurately, only the former could safely create it. This point is unlikely to be seriously disputed.

If we evaluate the Constitution by how changes can be made, we find it is neither fully NATIONAL nor fully FEDERAL. If it were fully national, the supreme and final authority would rest with the MAJORITY of the people in the Union, able at any time to alter or remove government, as in any national group. If it were fully federal, every alteration would need the agreement of each state in the Union to bind all. The convention's plan does not rely on either principle. By requiring more than a majority and by counting by STATES rather than by CITIZENS, it moves away from being purely national and towards being federal. By allowing less than all the states to agree, it departs from being fully federal and takes on some national features.

Therefore, the proposed Constitution is, strictly speaking, neither wholly national nor wholly federal, but a combination of both. In its foundation, it is federal, not national; in the origins of its regular powers, it is partly federal and partly national; in how those powers operate, it is national, not federal; in their spread, it is federal, not national; and finally, in the way amendments are introduced, it is not wholly federal or wholly national.

PUBLIUS

## FEDERALIST No. 40. On the Powers of the Convention to Form a Mixed Government Examined and Sustained.

### For the New York Packet. Friday, January 18, 1788.

MADISON

To the People of the State of New York:

THE SECOND point to examine is whether the convention was authorized to frame and propose this mixed Constitution.

The powers of the convention ought, strictly speaking, to be determined by reviewing the commissions given to the members by their respective constituents. Since all of these related either to the recommendation from the meeting at Annapolis in September 1786 or to that from Congress in February 1787, it will be sufficient to refer to these particular acts.

The act from Annapolis recommends the “appointment of commissioners to take into consideration the situation of the United States; to devise SUCH FURTHER PROVISIONS as shall appear to them necessary to render the Constitution of the federal government ADEQUATE TO THE EXIGENCIES OF THE UNION; and to report such an act for that purpose, to the United States in Congress assembled, as when agreed to by them, and afterwards confirmed by the legislature of every State, will effectually provide for the same.”

The recommendatory act of Congress reads as follows: “WHEREAS, There is provision in the articles of Confederation and perpetual Union, for making alterations therein, by the assent of a Congress of the United States, and of the legislatures of the several States; and whereas experience has shown, that there are defects in the present Confederation; as a means to remedy this, several of the States, and PARTICULARLY THE STATE OF NEW YORK, by express instructions to their delegates in Congress, have suggested a convention for the purposes stated in the following resolution; and such convention appearing to be the most likely means of establishing in these States A FIRM NATIONAL GOVERNMENT:

“Resolved, That in the opinion of Congress it is expedient, that on the second Monday of May next a convention of delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose OF REVISING THE ARTICLES OF CONFEDERATION, and reporting to Congress and the several legislatures such ALTERATIONS AND PROVISIONS THEREIN, as shall, when agreed to in Congress, and confirmed by the States, render the federal Constitution ADEQUATE TO THE EXIGENCIES OF GOVERNMENT AND THE PRESERVATION OF THE UNION.”

From these two acts, it appears: 1st, that the goal of the convention was to establish, in these States, A FIRM NATIONAL GOVERNMENT; 2nd, that this government was to be such as would be ADEQUATE TO THE EXIGENCIES OF GOVERNMENT and THE PRESERVATION OF THE UNION; 3rd, that these objectives were to be achieved by ALTERATIONS AND PROVISIONS IN THE ARTICLES OF CONFEDERATION, as stated in the act of Congress, or by SUCH FURTHER PROVISIONS AS SHOULD APPEAR NECESSARY, as it was put in the recommendatory act from Annapolis; 4th, that these alterations and provisions were to be reported to Congress and to the States, in order to be agreed to by the former and confirmed by the latter.

From a comparison and straightforward interpretation of these different phrases, we can deduce the authority under which the convention acted. They were to frame a NATIONAL GOVERNMENT, adequate to the EXIGENCIES OF GOVERNMENT and OF THE UNION, and to revise the Articles of Confederation so as to accomplish these objectives.

There are two rules of interpretation, dictated by plain reason and based on legal axioms. One is that every part of an expression should, if possible, be given some meaning and aimed towards a common purpose. The other is that where the different parts cannot be made to accord, the less important should yield to the more important; the means should be sacrificed to the end, rather than the end to the means.

Suppose then that the expressions defining the convention’s authority were completely inconsistent with each other; that a NATIONAL and ADEQUATE GOVERNMENT could not possibly, in the view of the convention, be achieved by ALTERATIONS and PROVISIONS in the ARTICLES OF CONFEDERATION; which part of the definition should have been adopted, and which rejected? Which was more important, and which less? Which was the end; which the means? Let the most exacting interpreters of delegated powers and the most determined objectors to the convention’s actions answer these questions. Let them declare whether it was more important for the happiness of the American people that the articles of Confederation be disregarded and an adequate government provided, thus preserving the Union, or that an adequate government be omitted to preserve the Confederation. Let them say whether the preservation of these articles was the end for which a new government was to be introduced as the means, or whether the establishment of a government adequate to national happiness was the true goal at which these articles originally aimed, and to which they should be sacrificed if they were insufficient.

But must we suppose that these expressions are absolutely irreconcilable; that no ALTERATIONS or PROVISIONS to the articles of confederation could possibly reform them into a national and adequate government like that proposed by the convention?

It is presumed that no importance, in this case, will be given to the TITLE; changing that could never legitimately be viewed as exercising an unauthorized power. ALTERATIONS to the body are expressly authorized. NEW PROVISIONS are also expressly authorized. Here, then, is the power to change the title, insert new articles, and alter old ones. Must we admit that this power is violated so long as part of the old articles remain? Those arguing for the affirmative should at least draw a clear line between authorized and unauthorized changes; between the degree of change allowed by ALTERATIONS AND FURTHER PROVISIONS, and what would constitute a complete TRANSFORMATION of the government. Will it be argued the changes should not have touched the substance of the Confederation? The States would never have solemnly appointed a convention or described its purpose so broadly if some significant reform had not been intended. Will it be said that the FUNDAMENTAL PRINCIPLES of the Confederation were not within the convention’s scope and should not have been altered? I ask, What are these principles? Do they require that, in establishing the Constitution, the States be seen as distinct and independent sovereigns? The proposed Constitution does so. Do they require that government members be appointed by the legislatures, not by the people of the States? One branch of the new government is to be appointed by these legislatures, and under the Confederation, the delegates to Congress MAY ALL be appointed directly by the people, and in two States(1), they actually are. Do they require the powers of government act on the States rather than individuals? In some instances, as has been shown, the new government’s powers will act on the States collectively. In some cases, even the existing government acts directly on individuals: in matters of capture, piracy, the post office, coinage, weights and measures, trade with Indians, competing land claims, and especially in military trials where death may be imposed without jury or even a civil judge—in all these, the Confederation’s powers operate directly on individuals. Do these principles require, specifically, that no tax be levied without State involvement? The Confederation itself allows direct taxes, to a certain extent, on the post office. Congress has interpreted the power of coinage to levy a direct tribute there as well. But setting aside these examples, wasn’t it an acknowledged aim of the convention, and the universal hope of the people, that trade regulation should be entrusted to the general government in a way that would make it an immediate source of general revenue? Had not Congress repeatedly recommended this move as not inconsistent with the Confederation’s core principles? Had not all but one State—and even New York—accepted the PRINCIPLE of that innovation? Do these principles, finally, require the general government’s powers be limited and that beyond that, the States retain their sovereignty and independence? We have seen that in the proposed government, just as in the old, general powers are limited; and in all unlisted cases, the States remain sovereign and independent.

The truth is, the main principles of the Constitution proposed by the convention can be considered less as completely new than as the expansion of principles already present in the Articles of Confederation. The problem with the latter is that these principles have been so weak and narrow as to support all charges of inefficiency that have been leveled against it, and require such enlargement as to make the new system appear a complete transformation of the old.

In one respect, it is admitted, the convention departed from the instructions in their commission. Instead of reporting a plan requiring confirmation BY THE LEGISLATURES OF ALL THE STATES, they have reported a plan to be confirmed by the PEOPLE, and put into effect by ONLY NINE STATES. Notably, though this objection seems plausible, it has actually been the least invoked in the many publications criticizing the convention. Such restraint can only have come from a clear sense of the absurdity of making the fate of twelve States depend on the stubbornness or corruption of a thirteenth; from the example, still fresh and irritating to anyone who cares for America's honor and prosperity, in which a majority representing only one sixtieth of the people blocked a measure supported by the other fifty-nine sixtieths. Since this objection has, in effect, been set aside even by the critics of the convention's powers, I leave it without further comment.

The THIRD point to be examined is how much considerations of duty arising from the situation itself could have compensated for any lack of regular authority.

In the previous sections, the powers of the convention have been analyzed and evaluated with the same rigor—and by the same standards—as if they were actual, final powers for establishing a Constitution for the United States. We have seen how well they hold up, even on that assumption. It is now time to remember that the powers were merely advisory and recommendatory; that they were intended as such by the States and understood as such by the convention; and that the convention thus designed and proposed a Constitution which is to have no more effect than the paper it is written on, unless endorsed by those to whom it is addressed. This fact gives the subject a completely different perspective and allows us to judge the convention's actions more appropriately.

Let us consider the basis on which the convention stood. From their proceedings, it is clear that they were deeply and unanimously aware of the crisis that had led their country—almost unanimously—to undertake so singular and solemn an experiment to correct the errors of the system that had created this crisis. They were equally convinced, and so were all, that a reform like the one they proposed was absolutely necessary to fulfill the purpose of their appointment. They surely knew that the hopes and expectations of the vast body of citizens throughout this great nation were focused with intense anxiety on the outcome of their deliberations. They had every reason to believe that contrary feelings troubled every enemy—inside and outside—of the liberty and prosperity of the United States. They had observed, both in the origin and progress of the experiment, the eagerness with which the PROPOSITION made by a single State (Virginia) for a partial amendment of the Confederation was received and advanced. They had seen the liberty taken by a VERY FEW deputies from a VERY FEW States, who gathered at Annapolis, to recommend an important and significant course of action wholly outside their commission—not only justified by public opinion, but actually put into effect by twelve out of the thirteen States. In various situations, they had witnessed Congress assuming not only the power to recommend, but even to act, in ways seen by the public as justified on matters and occasions far less pressing than those then before the convention. 

They must have reflected that, in all major changes to established governments, form must yield to substance; that strictly holding to procedure in such cases would make meaningless the supreme and precious right of the people to "abolish or alter their governments as to them shall seem most likely to effect their safety and happiness,"(2) since it is impossible for the people spontaneously and universally to act together towards their goal. Therefore, such changes must begin through some INFORMAL AND UNAUTHORIZED PROPOSALS made by one or more patriotic, respected citizens. They must have recalled that it was through this irregular and assumed privilege of proposing plans for the people's safety and happiness that the States first united against the threat posed by their former government; that committees and congresses were formed to coordinate efforts and protect their rights; and that CONVENTIONS were ELECTED in SEVERAL STATES to establish the constitutions they now lived under. They could not forget that the only scruples or excessive attachment to normal forms were shown by those who hoped to hide, behind such excuses, their secret opposition to what was truly being sought. They must have remembered that, since the plan they were to propose would be submitted TO THE PEOPLE THEMSELVES, any rejection from this highest authority would doom the plan forever; their approval would erase all previous errors and irregularities. Perhaps they even realized that, if fault-finding was the aim, their failing to fully use the power they had—or, even more, recommending any measure outside their commission—would draw criticism just as much as recommending a course of action truly suited to the nation's needs.

Had the convention, under these powerful impressions and considerations, instead chosen a cold and sullen resolve to disappoint their country's passionate hopes—sacrificing substance to procedures, risking the nation's most precious interests to chance and delay—let me ask anyone capable of one elevated thought or one patriotic feeling: what judgment would the impartial world, the friends of mankind, and every good citizen pass on such an assembly and its actions? Or, if there is a man whose habit is to condemn without restraint, what verdict would he issue for the twelve States that USURPED THE POWER to send deputies to the convention—a body entirely unknown to their constitutions? What of Congress, which recommended creating this body, also unknown to the Confederation? And what of New York, the State that first urged, then joined in, this unauthorized step?

But to leave the objectors with no excuse at all, let it be granted for a moment that the convention was neither authorized by its commission nor justified by the circumstances in proposing a Constitution for their country: does it follow that the Constitution ought to be rejected for that reason alone? If, to paraphrase the noble precept, it is right to accept good advice even from an enemy, should we set the poor example of refusing it when offered by our friends? In all cases, the sensible question must be not so much WHO gives the advice, but whether the advice itself is GOOD.

In summary, what has been presented and demonstrated is that the accusation against the convention for exceeding its authority, other than in one instance rarely stressed by critics, has no foundation; that even if they had gone beyond their powers, as their country's trusted servants, circumstances not only justified but required them to use such discretion; and, finally, that even if they had broken both their authority and obligations in proposing a Constitution, it should nonetheless be adopted, if it serves the aims and happiness of the American people. Whether the Constitution deserves this evaluation is now the question under discussion.

PUBLIUS

1. Connecticut and Rhode Island.

2. Declaration of Independence.

## FEDERALIST No. 41. General View of the Powers Conferred by The Constitution

### For the Independent Journal. Saturday, January 19, 1788

MADISON

To the People of the State of New York:

The Constitution proposed by the convention can be looked at from two main perspectives. The FIRST concerns the total sum or amount of power it gives the government, including the limits placed on the States. The SECOND concerns the specific structure of the government, and how this power is distributed among its various branches.

From the FIRST perspective, two important questions arise: 1. Is any part of the power given to the general government unnecessary or improper? 2. Does the total amount of power threaten the jurisdiction left to the individual States?

Is the aggregate power of the general government more than should have been given to it? This is the FIRST question.

Those who have honestly considered the arguments against the government's broad powers must have noticed that the critics rarely examine whether these powers are truly necessary means to a necessary goal. Instead, they tend to emphasize the inconveniences that inevitably accompany all political advantages, and the potential for abuses that come with any power or trust that could be beneficial. This approach should not deceive the common sense of the American people. It may show off the cleverness of the writer; it may provide endless opportunity for rhetoric and showy speech; it may stir the feelings of the unthinking, and reinforce the biases of the misguided—but calm and reasonable people will see at once that even the best human blessings come with some disadvantages; that the choice is always, if not between lesser evils, then at least between greater and not perfect goods; and that in every political institution, the power to do good for the public depends on a judgment that can be misused or abused. They will understand, therefore, that whenever power is to be given, the first thing to decide is whether such a power is needed for the public good; if so, the next step is to guard as well as possible against its misuse.

So that we may make a proper judgment, it is right to review the specific powers given to the national government, and to do this more conveniently, they can be grouped into different classes according to their relation to the following objects: 1. Security against foreign threats; 2. Regulation of relations with foreign countries; 3. Maintenance of harmony and fair relations among the States; 4. Certain miscellaneous concerns of general benefit; 5. Preventing the States from harmful acts; 6. Provisions to ensure all these powers are effective.

The powers in the FIRST class are those of declaring war and granting letters of marque; of raising armies and navies; of organizing and calling up the militia; of collecting and borrowing money.

Security against foreign danger is one of the main reasons for civil society. It is a clear and essential goal of the American Union. The powers necessary to achieve this must be fully given to the federal government.

Is the power to declare war necessary? No one will answer no to this question. There is no need, therefore, to argue in its favor. The current Confederation already grants this power in the fullest terms.

Is the power to raise armies and equip fleets necessary? This is included in the previous power. It is part of the power of self-defense.

But was it necessary to grant an INDEFINITE POWER to raise TROOPS, in addition to providing fleets; and to maintain both during PEACE as well as during WAR?

The answer to these questions has already been anticipated elsewhere enough that a lengthy discussion here is hardly needed. In fact, the answer seems so straightforward and decisive that it scarcely justifies a discussion at all. What sense would it make to limit the defensive force of those who cannot limit the offensive force of others? If a federal Constitution could restrain the ambitions or set boundaries for the exertions of all other nations, then it might be wise to place similar restraints on its own government’s discretion, limiting its efforts for national safety.

How could a readiness for war during peacetime be safely prohibited, unless we could just as easily prohibit all preparations and standing forces of any hostile nation? The means of security can only be set according to the means and threat of potential attack. In practice, these are always the determining factors. It is pointless to set constitutional barriers against the drive for self-preservation. It is worse than pointless; because it plants in the very Constitution necessary oversteps of power, every instance of which becomes the seed for unnecessary and repeated excesses. If one nation constantly maintains a trained army, ready to serve its ambition or revenge, every peaceful nation within its reach is forced to take similar precautions. The fifteenth century marked the beginning of standing armies during peacetime, introduced by Charles VII of France. All Europe followed, or was forced into, this example. Had other nations not followed, all of Europe might long ago have been subject to a universal monarch. If every nation but France were now to disband its peace-time militaries, the same thing could happen again. The veteran legions of Rome were stronger than the occasional courage of all other peoples and made her the mistress of the world.

It is equally true that Rome’s liberties ultimately became the victim of her military triumphs; and that Europe’s liberties, to the extent they existed, have almost all come at the cost of her military establishments. A standing force, therefore, is dangerous, even if it is sometimes necessary. On any scale, it brings risks; and on a large scale, its effects can be dire. Whatever the scale, it deserves careful consideration and caution. A wise nation will keep all these points in mind, and, while not rashly cutting itself off from any resource vital to its safety, will do everything possible to reduce both the necessity for and the danger of resorting to something that may threaten its liberty.

The clearest evidence of this prudence is built into the proposed Constitution. The Union itself, which it forms and secures, removes every excuse for a dangerous military establishment. America, united and with only a handful of soldiers—or even without a single soldier—presents a more intimidating prospect to foreign ambition than America split into competing states, each with a hundred thousand veterans under arms. It was previously noted that the absence of this excuse had protected the liberties of at least one nation in Europe. Benefiting from her island geography and naval strength, Great Britain’s rulers have never been able, by genuine or fake threats, to trick the public into supporting a large standing military during peace. The United States’ distance from the great powers of the world provides the same fortunate security. A dangerous standing army will never be necessary or convincing as long as we remain united. But let it never be forgotten, even for a moment, that we owe this advantage solely to the Union. The instant the Union dissolves will be the beginning of a new era. The fears of weaker states or the ambition of stronger ones or of Confederacies will repeat the same pattern in the New World as Charles VII set in the Old World. The example will be followed here for the same reasons it spread there. Instead of gaining the precious advantage that Great Britain enjoys, America will simply mirror continental Europe: liberty everywhere crushed between armies and relentless taxes. Disunited America’s fate would be even worse than Europe’s. Europe’s problems are confined to her continent. No greater powers from another part of the world meddle among her rival nations, stirring up hostility and turning them into tools of foreign ambition, jealousy, or revenge. In America, the troubles arising from internal jealousy, disputes, and wars would be just one part of our problems. Added to them would be new evils, born from our relationship to Europe, a relationship no other part of the world holds toward Europe.

This picture of the dangers of disunion cannot be exaggerated or shown too often. Every friend of peace, of country, or of liberty should always have it in mind, to keep a strong attachment to the Union, and to appreciate the value of preserving it.

After securing the Union itself, the best protection against threats from standing armies is to limit the time for which money can be assigned for their support. The Constitution wisely includes this safeguard. I will not repeat here the points I believe I already made clear about this subject, but it may be useful to mention an argument against this part of the Constitution, which is drawn from the policy and practice of Great Britain. It is claimed that maintaining an army there requires an annual vote of the legislature, whereas the American Constitution has set the period at two years. This is usually how the comparison is presented to the public: but is it fair? Is it an accurate comparison? Does the British Constitution restrict parliamentary discretion to just one year? Does the American require Congress to make appropriations for two years? In fact, as those promoting the argument must know, the British Constitution sets no such limit, while the American restricts the legislature to two years as the longest term allowed.

If the British example had been presented truthfully, it would be: The term for which funding may be given to the military, though unlimited by the British Constitution, has in practice been limited by parliament to one year. So, if in Britain—where the House of Commons is elected for seven years; where the members represent a tiny portion of the population; where the voters are corrupted by their representatives, and the representatives by the Crown—if their legislative body can grant military appropriations for any term without ever exceeding one year, should we really suspect that United States representatives—elected FREELY by the WHOLE POPULATION every TWO YEARS—cannot be trusted with this power, especially since their discretion is capped at TWO YEARS?

A flawed argument rarely fails to expose itself. In this, the opposition to the federal government is consistently exemplary. But among all the mistakes made, none is more obvious than the attempt to stir up justified wariness of standing armies against the Constitution. This effort has actually drawn public focus to this important topic, and resulted in studies that will ultimately convince everyone that not only has the Constitution provided the best protections against this danger, but that only a government truly adequate for national defense and the preservation of the Union can protect America from being split into many states or confederacies, each with its own army, and from growing these forces so much that they burden the people’s property and threaten their liberty even more than any single establishment needed under a unified, effective government ever could.

The self-evident need for the power to provide and maintain a navy has shielded that Constitution’s section from the critical spirit that has attacked so many others. It must in fact be considered one of America’s greatest blessings that the Union is the sole source of her naval strength, since this will be a main guarantee against attacks from abroad. In this, our situation is similar to the advantage of Great Britain’s island status. The defensive weapons most capable of repelling foreign threats to our safety are fortunately those that a corrupt government could never use against our liberties.

All the people of the Atlantic coast are deeply invested in this protection for the navy. If they have so far been able to sleep safely; if their property has been safe from pirates and criminals; if their harbors have not yet been forced to ransom themselves from threats of fire by paying off sudden and bold invaders—this good luck is not due to the existing government’s ability to protect its citizens, but to fleeting and unreliable causes. Except perhaps for Virginia and Maryland, which are especially vulnerable on their eastern borders, no part of the Union ought to be more concerned than New York. She has a long seacoast. An important part of the State is an island. The State is crossed by a major navigable river for over fifty leagues. The main city of commerce and wealth constantly lies at risk and could be seen as a hostage, vulnerable to foreign enemies or greedy pirates and raiders. Should a war break out, and all the wild passions it brings spill onto the sea, we would be genuinely fortunate to avoid attacks and destruction, whether at sea or on every shore. As things stand, the states most exposed to these dangers have nothing to hope for from the current “general government”; and if their own resources could somehow protect them, the means needed for their safety would nearly destroy the very things requiring protection.

The authority to regulate and call out the militia has already been sufficiently defended and explained.

The power to tax and to borrow money, as it is the lifeblood of what must be used for national defense, rightly belongs in the same category. This power too has already been thoroughly examined, and I believe it has clearly been shown to be necessary, both in its scope and in the form in which the Constitution grants it. Let me offer just one more remark for those who argue that the power should have been limited to “external” taxes—meaning taxes on imports from other countries. Without question, this will always be a valuable source of income; for some time, the main source; at this very moment, it is essential. But it would be a mistake not to remember, in our estimates, that the income from commerce with foreign countries will change both in amount and in type of imported goods; and these changes will not track with population growth, which must be the basic index of the nation’s needs. As long as agriculture is the only occupation, the import of manufactured goods will rise as population increases. Once workers not needed for farming start building home industries, the import of finished goods will fall as the population grows. Later, imports may be mostly raw materials, turned into goods for export, which may require government bounties rather than discouraging taxes. A system of government intended to last must be able to adapt to such changes.

Some, despite not denying the need for the power to tax, have attacked the Constitution fiercely for the way it is worded. It has been claimed and repeated that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” is actually an open-ended authority to use any power claimed to be needed for defense or general welfare. This in itself shows how desperate the writers of these objections are for reasons to oppose the Constitution.

If no other listing or clarification of congressional powers was in the Constitution except the broad expressions just quoted, critics might have some case—though it would still be odd to describe lawmaking power so unwieldy. To claim the power to eliminate freedom of the press, trial by jury, or even to regulate inheritance or legal documents, based on the phrase “to raise money for the general welfare,” would be a curious leap.

But what can justify the objection when the specific powers covered by the broad statement immediately follow, set apart only by a semicolon? If every phrase of the Constitution should be interpreted to give some meaning to each part, should one phrase in the very same sentence be ignored, while the more vague part is interpreted in its broadest sense and the precise terms are totally discarded? Why would the details be listed, if those and all others were meant to be included in the general power just before? It is common, even natural, to start with a broad phrase and then clarify or limit it with a list of particulars. The idea that a list of specific powers, which can neither clarify nor limit the broad statement, and does nothing but confuse, is an absurdity. Since we must blame this on the critics or on the Constitutional framers, we are quite sure it did not come from the latter.

The objection here is even more odd since the language the convention used was taken directly from the Articles of Confederation. The Union’s aims, as described in Article III, include “their common defense, security of their liberties, and mutual and general welfare.” Article VIII is even more like the Constitution: “All charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress, shall be defrayed out of a common treasury,” etc. There is similar language again in Article IX. If you interpret these articles as the critics do with the Constitution, they would give Congress the power to legislate in all cases. But what would people have thought of Congress if, holding onto such generalities and ignoring the lists that specify and limit their meaning, they exercised unlimited power in the name of the common defense and general welfare? I ask the critics: would they have used the same reasoning to defend Congress as they now aim at attacking the convention? It shows how hard it is for error to escape exposing itself.

**PUBLIUS**

## FEDERALIST No. 42. The Powers Conferred by the Constitution Further Considered

### From the New York Packet. Tuesday, January 22, 1788.

**MADISON**

To the People of the State of New York:

The SECOND class of powers given to the general government consists of those that regulate interactions with foreign nations, specifically: making treaties; sending and receiving ambassadors, other public ministers, and consuls; defining and punishing piracy and felonies committed on the high seas, and offenses against the law of nations; regulating foreign commerce—including the power, after the year 1808, to prohibit the importation of slaves, and to impose an intermediate duty of ten dollars per person to discourage such importations.

This set of powers represents an obvious and essential part of federal administration. If we are to be one nation in any true sense, it should certainly be with respect to other nations.

The powers to make treaties and to send and receive ambassadors clearly explain their own necessity. Both are included in the Articles of Confederation, with the difference that, under the proposed Constitution, treaties are no longer subject to exceptions that allowed the States to effectively undermine them; and that the power to appoint and receive “other public ministers and consuls” is expressly and appropriately added to the earlier provision about ambassadors. The term ambassador, if strictly interpreted—as appears to be required by the second article of Confederation—only includes the highest rank of public ministers and excludes the lower grades, which the United States will likely most often need for foreign representation. And no stretch of interpretation would include consuls in this term. Yet it has been found practical, and has been the practice of Congress, to employ lower grades of public ministers and to send and receive consuls.

It is true that when commercial treaties allow the mutual appointment of consuls, whose work is tied to commerce, admitting foreign consuls may fall under the power to make commercial treaties. And where no such treaties exist, sending American consuls abroad might perhaps be covered by the ninth article of the Confederation, authorizing the appointment of civil officers necessary to manage the general affairs of the United States. But letting foreign consuls into the United States, when there is no prior treaty providing for it, seems to have nowhere been arranged. The new Constitution supplies this omission—one of the smaller, yet important, ways it improves on its predecessor. Even minor provisions matter when they help prevent the need or excuse for gradual, unnoticed expansions of power. A list of occasions when Congress has been led, or forced by the shortcomings of the Confederation, into violating their granted authorities would be quite surprising to anyone unfamiliar with the issue; and it would be a strong case for adopting the new Constitution, which seems to address the smaller defects as carefully as the major ones.

The power to define and punish piracies and felonies on the high seas, and offenses against the law of nations, appropriately belongs to the general government, and is a major improvement over the Articles of Confederation. Those articles make no provision for offenses against the law of nations, leaving it possible for an irresponsible member to entangle the Confederacy in international disputes. Regarding piracy and felonies, the federal articles only provide for establishing courts to try these offenses. The definition of piracy could possibly be left to the law of nations, though most national legal systems create their own definitions. A definition of high-seas felonies is clearly necessary. “Felony” is a vague term, even in English common law, and means different things in that nation's statutes. However, neither the common law nor the statutes of England—or any other country—should guide our legal proceedings unless adopted by our own legislature. The definitions found in each state's laws are too inconsistent to be relied on; they vary from State to State and change with every revision of their criminal codes. Therefore, for the sake of certainty and uniformity, the power to define such felonies is wholly necessary and proper.

The regulation of foreign commerce, having already been addressed from several angles, has been thoroughly discussed already, and needs no further proof here that it rightfully belongs with the federal government.

It would have been better if the ability to prohibit the importation of slaves had not been delayed until 1808, or, ideally, had taken effect immediately. But it is not hard to explain why this limitation was imposed on the general government, or why the clause is worded as it is. We should recognize it as a significant victory for humanity that, within twenty years, that shameful trade may be ended forever in these States—a trade that has long stained modern policies with barbarism. During those years, the federal government will be able to discourage it substantially, and it could be fully abolished if the remaining few States involved follow the many States that have already set a prohibitory example. It would be a blessing for the unfortunate Africans if they could look forward to being freed from the oppression of their European brethren as well.

Some have twisted this clause into an objection against the Constitution, claiming it either tolerates a criminal practice or is calculated to prevent voluntary and beneficial immigration from Europe to America. I mention these misrepresentations not to answer them—for they do not deserve response—but to show the tactics and mentality of some who oppose the proposed government.

The THIRD class of powers includes those meant to ensure harmony and proper relations among the States.

This might also include certain restraints on State authority and certain judicial powers, but the former will have their own separate discussion, and the latter will be specifically addressed when we discuss the structure and organization of the government. Here, I will briefly review the other powers in this third category: regulating commerce among the States and with Indian tribes; coining money and regulating its value and that of foreign coin; providing for the punishment of counterfeiting the national currency and securities; fixing standards of weights and measures; establishing a uniform rule for naturalization and uniform bankruptcy laws; prescribing how public acts, records, and judicial proceedings from one State are to be proved and the effect they carry in other States; and establishing post offices and post roads.

The lack of federal power to govern commerce among the States is already a well-documented failure of the Confederation. Beyond the examples and arguments presented in earlier papers, it should be noted that, without this additional authority, the key power to regulate foreign commerce would remain incomplete and ineffective. An important part of this power is to protect States that must import and export through other States from having improper charges imposed on them by those States. If States were free to regulate trade between each other, it is predictable that they would find ways to tax goods as they pass through, burdening both those who produce exported goods and those who consume imported ones. Past experience assures us this would occur, and understanding of human nature tells us it would breed constant animosity and likely lead to serious disturbances of peace. To anyone thinking rationally—not driven by self-interest or passion—the idea of commercial States collecting indirect revenue from their non-commercial neighbors is both unfair and unwise; it would encourage the injured States, motivated by both resentment and practicality, to find other ways to conduct their foreign trade. Sadly, the sensible arguments for broad and lasting interests are often drowned out—both in assemblies and among individuals—by impatient cries for immediate, excessive gain.

The necessity for a supervising authority over trade among confederated States is not unique to our experience. In Switzerland, where the union is very loose, every canton is required to allow goods to pass through its territory into other cantons without increasing tolls. In Germany, it is a law of the empire that princes and states cannot impose tolls or customs on bridges, rivers, or passages without the emperor's or diet's consent; yet, as pointed out earlier, that law is often ignored, causing the very problems that were anticipated here. Among the restrictions on members of the Netherlands' union is that they may not establish tariffs that disadvantage neighboring provinces without getting general permission.

The regulation of commerce with Indian tribes is correctly freed from two limitations in the Articles of Confederation, which made that provision unclear and contradictory. In those articles, the power was restricted to dealing with Indians not members of any State, and not to violate state legislative rights within their limits. Which Indians are considered State members is still unsettled and has been the source of frequent confusion and dispute in federal councils. And how trade with Indians, not classified as State members but living within state jurisdiction, could be regulated by the federal government without intruding on state legislative rights is incomprehensible. This isn’t the only case in which the Articles of Confederation have tried, illogically, to reconcile the Union's limited sovereignty with the States' full sovereignty—an impossible feat, like subtracting a part and expecting the whole to remain.

As for the power to coin money, regulate its value (and that of foreign coin), the Constitution appropriately fixes a significant omission in the Articles of Confederation. The current Congress's authority is limited to coin struck by itself or by the States. Obviously, the proposed uniformity in the VALUE of circulating coin could be disrupted if the value of foreign coins could be set differently in each State.

Punishing counterfeiting of public securities, as well as currency, naturally falls under the authority responsible for protecting their value.

Regulating weights and measures is carried over from the Articles of Confederation for the same reasons as regulating coinage.

The inconsistent rules of naturalization across States have long been seen as a problem, giving rise to complex and delicate issues. The fourth article of the Confederation states, “that the FREE INHABITANTS of each of these States, paupers, vagabonds, and fugitives from justice, excepted, shall be entitled to all privileges and immunities of FREE CITIZENS in the several States; and THE PEOPLE of each State shall, in every other, enjoy all the privileges of trade and commerce,” etc. The confusing language is notable. Why use FREE INHABITANTS in one part, FREE CITIZENS in another, and PEOPLE elsewhere? Why add “all the privileges of trade and commerce” to “all privileges and immunities of free citizens”? The intention is hard to understand. It appears unavoidable that anyone qualifying as a FREE INHABITANT of one State, even if not a citizen, is granted, in every other State, the same privileges as the FREE CITIZENS of those states: that is, greater privileges than they enjoy in their own State. Thus, each State may not only have to grant citizenship rights in other States to people it makes citizens itself, but also to anyone it admits to residence within its borders. But even if we interpreted “inhabitants” to mean only citizens, the issue would not be solved completely. Every State would still have the problematic power to naturalize foreigners in every other State. In one State, brief residence is enough for full citizenship; in another, much more is required. Thus, someone barred from citizenship rights in the stricter State could get them by first residing in the more lenient State, making the law of one State unjustly override another’s. It’s only by chance we have avoided more serious problems here so far. In several States, certain categories of aliens, considered undesirable, have faced bans inconsistent not just with citizenship rights but even with the right to reside there. What would happen if such people, having gained citizenship or residence in a different State, claimed their rights to both in the State that excluded them? Whatever the legal consequences, the practical outcomes could be serious enough to require a remedy. The new Constitution, appropriately, remedies this and all related problems by empowering the general government to set a uniform rule of naturalization for the United States.

The power to create uniform bankruptcy laws is so closely related to regulating commerce, and so useful in preventing frauds when parties or their assets might cross State lines, that no one is likely to question its wisdom.

The authority to prescribe general laws for proving the public acts, records, and judicial proceedings of each State—and the effect these have in other States—is a clear and valuable improvement over the clause on this subject in the Articles of Confederation. The meaning of the previous provision was extremely vague and, under any interpretation, of little significance. The power now established can serve as a very useful instrument of justice, particularly on the borders of neighboring States, where property subject to legal action might be suddenly and secretly moved, at any stage of the process, across into another jurisdiction.

The power to establish post roads, from every perspective, is harmless, and with wise management may offer great public convenience. Anything that helps improve communication and interaction among the States is surely worthy of public attention.

PUBLIUS

## FEDERALIST No. 43. The Same Subject Continued (The Powers Conferred by the Constitution Further Considered)

### For the Independent Journal. Wednesday, January 23, 1788

MADISON

To the People of the State of New York:

THE FOURTH class contains the following miscellaneous powers:

1. The power “to promote the progress of science and useful arts, by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries.”

The usefulness of this power is hardly in question. In Great Britain, the copyright of authors has been recognized as a right under common law. The right to useful inventions, for similar reasons, rightly belongs to inventors. In both cases, the public interest fully agrees with individual rights. The States cannot effectively provide for either case on their own, and most have already addressed this point by enacting laws at the urging of Congress.

2. “To exercise exclusive legislation, in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States and acceptance of Congress, become the seat of the government of the United States; and to exercise similar authority over all places purchased with the consent of the legislatures of the States in which they are located, for the erection of forts, magazines, arsenals, dockyards, and other necessary buildings.”

The undeniable necessity of full authority at the seat of government is self-evident. This power is exercised by every legislature in the Union—and indeed, in the world—by virtue of their supreme authority. Without it, the public authority could be insulted or its workings disrupted without consequence. Reliance by members of the general government on the State that contains the seat of government for protection in carrying out their duties could bring upon national councils an appearance of intimidation or influence, ultimately discrediting the government and being unsatisfactory to other members of the Confederacy. This issue carries extra weight, since as public improvements accumulate at the fixed residence of government, this creates an ever-larger public asset inappropriate for a single State to control, and adds so many hardships to any needed relocation of the government as to further restrict its necessary independence. The area of this federal district is small enough to ease any concerns to the contrary. Further, because it must be set aside with the consent of the State ceding it; because the State will surely address, in the agreement, the rights and consent of the residents; because the residents will have adequate inducements to support the cession; because they will have participated in electing the government that will rule over them; because, of course, a local legislature for municipal purposes—elected by themselves—will be provided; and because both the State legislature and the people living in the ceded part of the State will have authority derived from the will of the whole State in ratifying the Constitution, all reasonable objections appear to be addressed.

The necessity for similar authority over forts, magazines, and so forth established by the general government is likewise clear. The public funds spent on such sites, and public property stored there, demand exemption from the authority of the individual State. It would not be right for places vital to the Union’s security to be, in any way, under the control of any single member State. Again, all concerns are settled by requiring the approval of the affected States in every such case.

3. “To declare the punishment for treason, but no conviction of treason shall result in corruption of blood or confiscation of property except during the life of the person convicted.”

Since treason may be committed against the United States, the United States must have the power to punish it. But as novel and artificial definitions of treason have often been the tools by which violent factions—the natural product of free government—have used to exact vengeance on their rivals, the convention has wisely placed a safeguard against this special threat by including a constitutional definition of the crime, specifying the evidence required for conviction, and restraining Congress, even in punishment, from letting guilt affect anyone other than the person responsible.

4. “To admit new States into the Union; but no new State shall be formed or established within the jurisdiction of another State; nor any State formed by joining two or more States, or parts of States, without the consent of the legislatures of the States involved, as well as Congress.”

The Articles of Confederation made no provision for this important matter. Canada would be admitted automatically if she joined the measures of the United States, and the other COLONIES—that is, the other British colonies—could be admitted at the discretion of nine States. The possible formation of NEW STATES seems to have been overlooked by the drafters of that document. We have seen the inconvenient results of this omission, and the powers Congress has had to assume as a result. Correction of this oversight in the new system is therefore quite appropriate. The general stipulation that no new State shall be created without the agreement of both the federal authority and the involved States aligns with the right principles for such actions. The specific safeguard that no State shall be split to create a new State without its own consent protects the larger States from having their territory divided, just as the rule preventing forced mergers of smaller States shields their interests.

5. “To dispose of and make all necessary rules and regulations about territory or other property belonging to the United States,” with a proviso that “nothing in the Constitution shall be interpreted to prejudice any claims of the United States or any particular State.”

This power is of great importance and is supported by considerations like those used to justify the previous power. The attached proviso is appropriate and was probably made absolutely necessary by the known disputes and suspicions concerning the Western territory.

6. “To guarantee to every State in the Union a republican form of government; to protect each of them against invasion; and, on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence.”

In a confederacy founded on republican principles and made up of republican members, the supervising government must clearly have the authority to defend the system against aristocratic or monarchical changes. The closer the union is, the more invested the members are in each other's political institutions, and the greater their right to insist that the forms of government under which the compact was made are SUBSTANTIALLY maintained. But a right implies a remedy; and where else could that remedy be placed except where the Constitution places it? Governments with dissimilar principles and forms have proven less suited to any kind of federal coalition than those of a more similar nature. "As the confederate republic of Germany," says Montesquieu, "consists of free cities and small states ruled by different princes, experience shows us that it is more imperfect than that of Holland and Switzerland." "Greece was undone," he adds, "as soon as the king of Macedon obtained a seat among the Amphictyons." In the latter case, no doubt, the new confederate's overwhelming strength and monarchical form both played a role in the outcome.

Some may ask what necessity there is for such a precaution, and whether it might become a pretext for altering the State governments without their own agreement. These questions have clear answers. If the general government’s intervention is never needed, then this provision in the Constitution is simply a harmless safeguard. But who knows what experiments might arise from the whims of individual States, ambitious leaders, or the schemes and influence of foreign powers? As for the second question, if the general government does act under this constitutional power, it is, of course, bound to stay within its authority. But that authority is limited to a GUARANTY of a republican form of government, which means there must be an existing government of the kind the Constitution guarantees. As long as the States continue their current republican forms, they are protected by the federal Constitution. If the States decide to replace those forms with other republican models, they have the right to do so, and to claim the federal guarantee for the new forms. The only restriction is that they cannot swap a republican for a non-republican constitution—a limitation that is unlikely to be seen as a burden.

Every society owes protection against invasion to its members. The broad language here seems to protect each State not only from foreign attacks, but also from ambitious or vengeful moves by more powerful neighbors. The history of both ancient and modern confederacies shows that the weaker members of the union should not ignore the wisdom of this article.

Protection against domestic violence is rightly added. It has been noted that even among the Swiss cantons, which technically are not under a single government, there is provision for this; and their history shows that mutual aid is often requested and given, by both the most democratic and the other cantons. A recent and well-known event among ourselves has reminded us to be ready for similar emergencies.

At first, it might seem at odds with republican theory to suppose that a majority does not have the right, or that a minority will have the power, to overthrow a government, and therefore that federal intervention could only be necessary when improper. But theoretical reasoning must be adjusted according to real-world experience. Why couldn’t illegal organizations for violence be formed by a majority in a State, especially a small one, just as a majority could arise in a county or district of that State? If State authority should protect local officials in the latter case, shouldn’t federal authority support State authority in the former? Furthermore, certain parts of State constitutions are so intertwined with the federal Constitution that harm to one will harm the other. Federal intervention in State insurrections will rarely occur unless the numbers involved are significant compared to those supporting the government. It is far better that violence in such cases is stopped by the central authority than for the majority to have to fight a bloody and stubborn battle. The existence of a right to intervene will usually prevent the need to use it.

Is it true that, in republics, force and right always align? Couldn't the minority have superior financial resources, military skill and experience, or secret help from foreign powers, making them superior in open conflict? Couldn't a more unified and strategic position tip the balance, even against a numerically larger but less organized force? Nothing is more fanciful than to think that in real conflict, victory follows the same rules as a census or an election! Couldn’t the minority of CITIZENS become a majority of PERSONS, through alien residents, adventurers, or those whom the State constitution hasn’t given voting rights? I won’t discuss that unfortunate class of people, abundant in some States, who, under normal government, are regarded as beneath the level of humanity; but who, in times of civil chaos, might emerge and add strength to any party they join.

When it’s uncertain which side has justice, who could serve better as referees between two warring factions tearing a State apart than representatives of the confederate States, not blinded by local passions? As judges, they would combine fairness with the concern of friends. How fortunate it would be if all free governments could share such a remedy for their weaknesses; if such a system could secure lasting peace for all of humanity!

If someone asks, what remedy is there for an insurrection spread throughout all the States, with the majority of total force, but not a majority of constitutional right?—the answer is that such a situation, being beyond human solutions, fortunately remains beyond human likelihood; and it is an important benefit of the federal Constitution that it reduces the chances of a disaster no constitution could fix.

Montesquieu lists, among the advantages of a confederate republic, the fact that "should a popular uprising occur in one of the States, the others can suppress it. If abuses appear in one part, they are corrected by those that remain sound."

7. “To consider all debts contracted, and engagements entered into, before the adoption of this Constitution, as being no less valid against the United States, under this Constitution, than under the Confederation.”

This should only be read as a straightforward declaration, likely included to reassure the United States’ foreign creditors, who surely have heard the false claim that a change in a nation’s political structure magically erases its moral obligations.

Among the lesser complaints raised about the Constitution, it has been said that the validity of obligations should have been confirmed in favor of the United States, as well as against them; and, in typical fashion for minor critics, this omission has been twisted into a suspected scheme against national interests. Those making this point can be told—what most already know—that since obligations are by nature mutual, asserting their validity on one side necessarily means they are valid on the other side too; and that since this article is just declarative, establishing the principle in one direction is enough. They might also be told that every constitution must focus on real, likely dangers, not purely imaginary ones; and that there is no genuine risk the government would DARE, with or without such a declaration in the Constitution, to forgive the public debts it rightfully owes, under the argument condemned here.

8. “To provide for amendments to be ratified by three fourths of the States under two exceptions only.”

It was expected that helpful changes would become apparent with experience. Therefore, a process for making them had to be included. The method chosen by the convention appears perfectly appropriate. It guards equally against being too easy to amend, which would undermine stability, and too difficult, which would perpetuate any discovered problems. It also allows both the general and State governments to propose corrections as issues arise on either side. The exception preserving equal representation in the Senate likely was meant as a safeguard of the States’ remaining sovereignty, reflected and protected by equal Senate representation; and was likely insisted upon by the States particularly attached to that equality. The other exception was probably accepted for the same reason as the privilege it protects.

9. “The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States, ratifying the same.”

This article is self-explanatory. Only the clearly expressed authority of the people could give the Constitution its proper legitimacy. To require unanimous approval from all thirteen States would have allowed the vital interests of all to be threatened by the whims or corruption of a single State. To have done so would show a lack of foresight on the convention’s part, something our experience would make inexcusable.

Two very delicate questions arise here: 1. On what grounds can the Confederation—which is a formal compact among the States—be set aside without unanimous consent? 2. What relationship will exist between the nine or more States approving the Constitution and the few that do not?

The first question is answered quickly by referring to the absolute necessity of the situation; to the fundamental law of self-preservation; to the highest law of nature and nature’s God, which says that the safety and happiness of society are the purpose of all political institutions, and those institutions must always serve that purpose. PERHAPS, an answer can be found even within the principles of the compact itself. As already mentioned, the Confederation was, in many States, never approved above the level of ordinary legislation. Reciprocity would suggest its hold on the other States should be the same. A compact between independent sovereigns, founded only on legislative acts, has no more validity than a treaty or alliance between parties. Under the law of treaties, every article is a mutual condition; breaking any single article breaks the whole treaty; and if one party breaks it, the others are free, and can declare the compact void. Should it become necessary to use these principles to justify setting aside the federal pact without certain States’ consent, won't those States have difficulty responding to the MULTIPLE and SERIOUS violations with which they might be confronted? There was a time when it was necessary for all of us to hide the thoughts this paragraph expresses. Times have changed, and so must our approach.

The second question is just as sensitive; and since it is likely only hypothetical, it’s best not to dwell on it. It is one of those matters that will resolve itself. Generally, even though political connection cannot exist between the approving and non-approving States, their moral obligations will remain unaffected. The claims of justice, on both sides, will continue and must be honored; the rights of humanity must always be properly respected by both; and mutual interests, as well as the memory of times past and the hope of soon overcoming obstacles to reunion, should encourage MODERATION on one side and PRUDENCE on the other.

PUBLIUS

## FEDERALIST No. 44. Restrictions on the Authority of the Several States

### From the New York Packet. Friday, January 25, 1788.

MADISON

To the People of the State of New York:

A FIFTH category of provisions supporting federal authority consists of the following restrictions on the powers of the several States:

1. “No State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver a legal tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts; or grant any title of nobility.”

The prohibition against treaties, alliances, and confederations is part of the current Articles of Union and, for reasons that need no explanation, is incorporated into the new Constitution. The ban on letters of marque is another element of the old system, though it is somewhat expanded in the new. Under the former system, States could grant letters of marque after a declaration of war; under the new, these licenses must be obtained from the government of the United States, both during war and before its declaration. This change is fully justified by the benefit of uniformity in all foreign affairs and of immediate accountability to the nation for those whose actions the nation is responsible for.

The right to coin money, which is now taken from the States, was previously allowed under the Confederation as a concurrent right with Congress, except that Congress alone could regulate the alloy and value. Here too, the new provision is an improvement. While the alloy and value depended on the general authority, the States’ right to mint could only create expensive mints and varied forms and weights of currency. The latter problem defeats one key reason for giving coinage power to the federal government; and if the former inconvenience was meant to prevent the costly transportation of gold and silver to a central mint for recoinage, the same goal can still be achieved by establishing local mints under federal authority.

The extension of the prohibition to bills of credit should please every citizen, according to their sense of justice and understanding of the real foundations of public prosperity. Since the peace, America has suffered greatly from the harmful effects of paper money—weakening trust between individuals, in public policy decisions, in the industry and morals of citizens, and in the reputation of republican government. This causes a massive debt against the States responsible for this misguided measure, which will remain outstanding for a long time; or rather an accumulation of guilt that can only be atoned by voluntarily giving up the power that enabled it. Furthermore, the rationale for denying States the power to regulate coin applies equally to their ability to create a paper alternative. If every State could regulate its currency, there could be as many currencies as there are States, disrupting commerce between them; retrospective changes in value could harm citizens of other States and foster disputes among the States themselves. Foreign nationals might suffer for the same reasons, discrediting the Union and causing conflicts because of a single State’s mistakes. None of these problems is less likely if States can issue paper money than if they can coin gold or silver. The States’ power to make anything but gold and silver legal tender for debts is denied for the same reason as their power to issue paper currency.

Bills of attainder, ex post facto laws, and laws that impair the obligation of contracts are fundamentally against the basic social contract and every principle of sound lawmaking. The first two are specifically banned by some State constitutions, and all three are forbidden by the spirit and intent of these foundational charters. Our experience still teaches us that extra protections against these dangers should not be omitted. Accordingly, the convention wisely added this constitutional safeguard to protect personal security and private rights; and I am convinced they have thereby respected both the true feelings and the clear interests of their constituents. The sensible people of America are tired of the unpredictable policymaking that has guided public decisions. They have seen with regret and indignation that sudden changes and legislative meddling, especially in matters of personal rights, become opportunities for shrewd and influential speculators, while ensnaring the more industrious and less informed members of society. They have also seen that one legislative interference leads to another, creating a chain of interventions, each one prompted by the last. They rightly conclude that a thorough reform is needed—one that will end speculation on public measures, encourage industry and prudence, and establish a regular course for society’s business. The prohibition of titles of nobility is copied from the Articles of Confederation and requires no further comment.

2. “No State shall, without the consent of Congress, levy any imposts or duties on imports or exports, except what may be strictly required to carry out its inspection laws, and the net proceeds of all duties and imposts laid by any State on imports or exports, shall be for the use of the treasury of the United States; and all such laws are subject to Congress’s review and control. No State shall, without Congress’s consent, lay any duty on tonnage, keep troops or warships in peacetime, enter into any agreement or compact with another State or with a foreign power, or engage in war unless actually invaded or unless facing such imminent danger that delay is impossible.”

The restriction on the States’ power over imports and exports is supported by all the arguments that justify placing trade regulation under federal control. There is little need to elaborate here, except to note that the details of the restriction seem designed to give States reasonable discretion over their imports and exports while giving the United States a corresponding protection against misuse. The remainder of this clause falls under arguments that are either so self-explanatory or have already been thoroughly discussed that they need not be repeated.

The SIXTH and final category covers the various powers and provisions that give effect to all the rest.

1. The first of these is the “power to make all laws necessary and proper for carrying out the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”

Few parts of the Constitution have been attacked with more passion than this one; yet when fairly analyzed, no part appears more defensible. Without the substance of this power, the entire Constitution would be meaningless. Those who object to this article in the Constitution can only mean that its form is wrong. But have they considered whether a better form could have been chosen?

There are four other potential approaches the Constitution might have taken on this matter. They might have copied the second article of the existing Confederation, which would have barred the exercise of any power not EXPRESSLY delegated; they could have tried to make a positive list of powers covered under the general “necessary and proper” clause; they could have tried a negative list, specifying powers excepted from the general grant; or, they could have been silent, leaving such powers to be defined by interpretation.

Had the convention used the first method—adopting the second article of Confederation—it’s clear that the new Congress, like its predecessor, would constantly face the dilemma of interpreting “EXPRESSLY” so strictly as to strip the government of real power, or so loosely as to nullify the restriction entirely. It would be easy to prove, if necessary, that every important power granted by the Confederation requires, to some extent, reliance on interpretation or implication to be exercised. Since the powers given under the new system are even broader, the government would be even more troubled by the choice between letting public interests suffer by doing nothing or violating the Constitution by using powers absolutely necessary and proper, which are not EXPRESSLY listed.

Had the convention tried to specify in detail all the powers necessary and proper to carry out other powers, it would have required a complete code of laws on every topic covered by the Constitution—laws not just for the present, but for all future changes that might occur. For every new application of a general power, the specific means of achieving the OBJECTIVE would have to be adapted to changing circumstances, even if the goal remained the same.

Had they attempted to list the specific powers or means NOT necessary or proper to carry out the general powers, the task would be just as unrealistic, and would bring the additional problem that any omission in the list could be seen as a positive grant of authority. If, to avoid this, a partial list of exceptions had been provided along with a general clause such as “NOT NECESSARY OR PROPER,” the result would be to enumerate only those powers least likely to be assumed anyway; and the unnecessary or improper powers remaining would be less effectively excluded than if no partial list existed.

Had the Constitution been silent on this point, there is no doubt that all the specific powers needed as tools to carry out the general powers would have fallen to the government by necessary implication. No principle is more widely accepted in law or reason than that if an end is required, the means are permitted; wherever a general power is granted, every specific power needed to exercise it is included. Had the convention taken this final approach, all the objections currently made against their plan would have the same apparent force, and the real problem would remain: failing to remove the excuse, which could be used in critical moments, to dispute the essential powers of the Union.

If it is asked what the consequence would be if Congress misinterprets this part of the Constitution and exercises powers not warranted by its true meaning, I answer: the result would be the same as if they misinterpreted or expanded any other power entrusted to them; the same as if the general power had been reduced to specific details and any of those were violated; in short, the same as if State legislatures violated their respective constitutional authorities. In the first instance, the success of such a usurpation would depend on the executive and judiciary departments, which are responsible for interpreting and enforcing the legislative acts. Ultimately, however, the remedy must come from the people, who can, by electing more faithful representatives, overturn the acts of the usurpers. The reality is that this ultimate remedy may be more reliable against unconstitutional acts of the federal government than of the State legislatures, for the plain reason that each such federal act would infringe upon the rights of the States, making the States ever ready to notice the encroachment, alert the public, and use their local influence to bring about a change in federal representatives. Since there is no such intermediate body between the State legislatures and the people to monitor the former, violations of State constitutions are more likely to go unnoticed and remain uncorrected.

2. “This Constitution and the laws of the United States made in accordance with it, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound by them, anything in the constitution or laws of any State to the contrary notwithstanding.”

The reckless enthusiasm of the Constitution’s opponents has led them to attack this part as well, even though without it the Constitution would have been clearly and fundamentally flawed. To fully understand this, just imagine for a moment that the supremacy of the State constitutions were left intact by a special clause protecting them.

First, since these constitutions give the State legislatures absolute sovereignty in all areas not limited by the existing Articles of Confederation, any authorities included in the proposed Constitution that go beyond those in the Confederation would have been nullified, rendering the new Congress just as powerless as its predecessor.

Second, since the constitutions of some States do not even specifically recognize the powers of the Confederation, an explicit clause saving the supremacy of the State constitutions would, in those States, call into question every power granted by the proposed Constitution.

Third, as the constitutions of the States differ greatly from one another, it could happen that a treaty or national law, important to all States, might conflict with some but not others, making it valid in certain States but ineffectual in others.

In summary, the world would have seen, for the first time, a system of government built on the reversal of the core principles of governance—societal authority everywhere subordinate to the authority of its parts. It would have witnessed a monstrosity where the head is led by the members.

3. “The Senators and Representatives, and the members of the several State legislatures, and all executive and judicial officers, both of the United States and the several States, shall be bound by oath or affirmation to support this Constitution.”

It has been asked why it was considered necessary to require State officials to support the federal Constitution, but not to require federal officers to swear to support State constitutions.

Several reasons could be offered for this distinction, but I will give one which is clear and decisive. Federal government members have no role in implementing the State constitutions. By contrast, State government members and officers play an essential part in enforcing the federal Constitution. The election of the President and the Senate, in all cases, depends on the legislatures of the States. Likewise, the initial election of the House of Representatives also depends on the same State authority; and in all likelihood, it will always be administered by State officers and according to State laws.

4. Among the provisions meant to enforce federal powers are those belonging to the executive and judiciary branches, but since these are reserved for detailed examination elsewhere, I will skip them here.

We have now carefully examined all the articles composing the total power delegated by the proposed Constitution to the federal government, and we are left with the clear conclusion that none of these powers is unnecessary or improper for achieving the vital objectives of the Union. Therefore, the question of whether this amount of power should be granted ultimately comes down to whether or not a government suited to the urgent needs of the Union should be established; in other words, whether the Union itself should be preserved.

PUBLIUS

## FEDERALIST No. 45. The Alleged Danger From the Powers of the Union to the State Governments.

### Considered For the Independent Journal. Saturday, January 26, 1788

MADISON

To the People of the State of New York:

Having shown that none of the powers transferred to the federal government is unnecessary or improper, the next question to consider is whether the total of these powers will be dangerous to the authority left with the individual States.

The opponents of the convention’s plan, instead of first considering how much power is truly necessary for federal purposes, have exhausted themselves with a secondary question about how the proposed powers might affect the governments of particular States. But if the Union, as shown, is necessary for the security of the American people against external threats, for their safety against disputes and wars among States, for protection against those harsh factions that taint liberty’s blessings and against military establishments that slowly destroy its foundations—if, in short, the Union is essential to Americans’ happiness—is it not misguided to object to a government necessary for the Union’s aims simply because it might diminish the importance of State governments? Was the American Revolution fought, the Confederation formed, and the blood and wealth of so many Americans expended, just so people could enjoy peace, liberty, and safety, or was it only for the sake of letting State governments have more power and status? We have heard the blasphemous doctrine in the Old World that the people exist for kings, not vice versa. Is that doctrine to be revived in America—in another form—where the happiness of the people is sacrificed for political institutions of a different style? It is too soon for politicians to think we have forgotten that the public good, the welfare of the people as a whole, is the true purpose of government; and that no government has value except as it furthers this aim. If the convention’s plan went against public happiness, I would say: Reject the plan. If the Union were inconsistent with public happiness, I would say: Abolish the Union. In the same way, wherever State sovereignty cannot be reconciled with the people’s happiness, every good citizen must insist the former be sacrificed for the latter. How much sacrifice is necessary has already been shown; now the question is how much of what remains unsacrificed is truly at risk.

Several key points have already been discussed in these papers, showing that the federal government is less likely, over time, to endanger the State governments. The more I consider the matter, the more convinced I am that the balance of power is actually more likely to tip in favor of the States than of the federal government.

We have observed, in all examples of ancient and modern confederacies, a persistent tendency among the members to deprive the central government of its powers, while the central authority has shown little ability to defend itself against such encroachments. Although, in most of these cases, the systems were so different from the one now under consideration that any inferences we draw from their outcomes should be viewed with caution, it remains true that, under the proposed Constitution, the States will retain a very broad scope of active sovereignty. This similarity means the lesson should not be entirely ignored. In the Achaean League, for instance, the federal authority likely held a kind and degree of power that made it resemble the system proposed by the constitutional convention. The Lycian Confederacy, as far as its structures and principles are known, must have shared an even greater resemblance. Yet history does not tell us that either of them ever decayed or tended to decay into a single unified government. On the contrary, we know that the downfall of one resulted from the inability of the federal authority to prevent disputes—and eventually the separation—among its constituent members. These examples deserve special attention since, in their cases, the external pressures binding the members together were much stronger and more numerous than in our situation; thus, even weaker internal connections would be sufficient to hold the members together and to the central authority.

The feudal system exhibited a similar tendency. Despite the general lack of close ties between local sovereigns and the people, and the occasional connection between the central authority and the people, it most often occurred that local sovereigns succeeded in their struggle for increased power. Had no outside threats forced harmony and subordination at home—and especially if the local sovereigns had truly held the people's loyalty—the great kingdoms of Europe would today be divided into as many independent princes as there once were feudal barons.

State governments, in nearly every respect, will have the upper hand over the Federal government. This holds true whether we look at which is more immediately dependent on the other, the amount of personal influence they possess, the powers they are granted, the people's preference and likely support, or their ability and determination to resist and undermine each other's actions.

State governments can be considered fundamental and necessary parts of the federal system, whereas the federal government is by no means essential to the operations or organization of the States. Without the involvement of the State legislatures, the President of the United States could not be elected at all. In every case, they must play a significant role in his selection, and will often, perhaps usually, determine the outcome themselves. The Senate will be chosen entirely and exclusively by the State legislatures. Even the House of Representatives, though elected directly by the people, will be chosen largely under the influence of those men whose sway over the people gets them elected into State legislatures in the first place. Therefore, every main branch of the federal government will, to some extent, owe its existence to the goodwill of the State governments, and will likely feel a dependence that will more likely lead to excessive deference than to overbearing control. In contrast, the State governments will in no case owe their positions directly to the federal government, and only rarely, if at all, to any local influence held by federal officials.

The number of officials employed under the United States Constitution will be much smaller than those employed by the individual States. This means the federal side will wield far less personal influence compared to the States. The legislators, executives, and judges of thirteen or more States, the justices of the peace, militia officers, various justice officials, and all county, city, and town officers, for three million or more people, will interact and develop personal relationships with every level and type of the citizenry far more than federal officers ever could. Their numbers and influence will greatly exceed, by any measure, those in federal administration. Compare the officials in the three major branches of thirteen States—excluding justices of the peace—from the judiciary, with those in the same branches of the federal government. Compare the number of militia officers needed for three million people, with the numbers of federal military and navy officers the country may possibly require, and even from this perspective alone, the advantage of the States is clear. If the federal government is to employ tax collectors, so will the States. State tax collectors, being spread throughout the country and more numerous, while federal collectors will mainly be on the seacoast and fewer in number, grants a further advantage to the States. It is true the Confederacy will have power to collect internal and external taxes throughout the States, but this will likely only be exercised for additional revenue. The States will likely have the option to collect their contributions through their own processes first, and federal collections, if necessary, will often be carried out by State-appointed officers and according to State rules. In fact, it is very likely that, in other cases—especially in designing the federal judiciary—State officers will be granted the related federal authority. If there should ever be separate federal collectors of internal taxes, the overall influence of these few officers would be insignificant when compared to the many State officials on the other side. In every district where a federal collector is assigned, there would be at least thirty or forty, or often more, State officers, many of them people of standing and influence, whose support would be with the State.

The powers given by the proposed Constitution to the federal government are few and clearly described; those retained by the State governments are numerous and broadly defined. The federal government’s powers will focus mainly on external affairs such as war, peace, diplomacy, and foreign trade; most federal taxes will be linked to these. The States, meanwhile, will control all matters that, in daily life, relate to the safety, freedoms, and property of individuals—and the internal order, improvement, and prosperity of the State.

The federal government's actions will be most wide-reaching and vital in times of war and danger; State governments take the lead in times of peace and safety. Since the latter periods will likely outnumber the former, State governments will enjoy further advantages over the federal government. In fact, the more adequate federal powers become for national defense, the rarer those dangerous situations will be—and with them the opportunities for the federal government to overshadow State governments.

A close and fair reading of the new Constitution shows that it aims far less at giving NEW POWERS to the Union than at strengthening the use of its ORIGINAL POWERS. The regulation of commerce is a new power, but it is generally welcomed, with little fear attached. The powers regarding war and peace, armed forces, treaties, and finances—all major powers—are already granted to Congress under the Articles of Confederation. The proposed changes do not expand these powers; they just supply a more effective means for Congress to carry them out. The change regarding taxation might be the most significant; still, the current Congress already has complete authority to REQUIRE the States to supply unlimited funds for the common defense and welfare, just as the future Congress may demand funds directly from the people. And the people will be no more bound to pay than the States have been in the past. Had the States complied reliably with the Articles of Confederation, or could their compliance have been enforced as effectively and peaceably as compliance could be enforced on individual citizens, our experience would give us no reason to think that State governments would lose their powers or gradually be consolidated into one. To argue that such a result was inevitable is to claim that any system capable of achieving the essential purposes of the Union is incompatible with the continued existence of State governments.

PUBLIUS

## FEDERALIST No. 46. The Influence of the State and Federal Governments Compared

### From the New York Packet. Tuesday, January 29, 1788.

MADISON

To the People of the State of New York:

Continuing the subject from the last paper, I now look into whether the federal government or the State governments will be better positioned to gain the people's loyalty and support. Despite the different ways both are elected, we need to remember that both fundamentally depend on the people of the United States. I stress this point here regarding the federal side, although further proof will be given later on. The federal and State governments are, in fact, different agents and trustees representing the people, established with different roles for different objectives. Opponents of the Constitution appear to ignore the people entirely in their arguments, seeing the two governments instead as rivals and enemies, unchecked by any common superior in their struggles for power over one another. These gentlemen must be reminded of their mistake. It must be made clear that the ultimate authority, whatever form it takes, rests only with the people, and that whether either government can enlarge its powers at the other's expense does not depend merely on official ambition or skill. Respect for truth, as well as propriety, demands that in every case the result should be understood to depend on the opinions and approval of their shared constituents.

Many reasons, beyond those I have already discussed, lead me to believe that people’s initial and strongest loyalty will be toward their own State governments. More citizens will expect to rise in the ranks of State administration. More offices and rewards will come from State governments. The well-being of daily, personal interests is maintained by State management. People are more familiar with the workings of their State governments, and they know more State politicians personally—sharing family, friendships, and political ties. For these reasons, it is expected that public favoritism will be on the side of the States.

History confirms this view. Even though the federal administration has so far been faulty compared to what we hope for in the future, it still enjoyed significant activity and importance during the war, especially while federal currency held value. The federal government, during the war, protected everything the people cared about and pursued everything they desired. Yet, when the brief enthusiasm for the early Congresses faded, people’s focus and attachment returned to their own State governments. The federal council was never the subject of widespread popularity, and resistance to granting it more power was the primary stance adopted by those whose political influence depended on popular sentiment.

Therefore, if—as mentioned elsewhere—the people should someday grow fonder of the federal government than of the State governments, that can only happen as a result of clear, undeniable evidence of better leadership, strong enough to overcome their longstanding preferences. If that happens, the people certainly should not be prevented from giving the most trust where it’s deserved. But even then, State governments would have little to fear, since federal powers, by their nature, can only be beneficially exercised within certain limits.

The final areas I want to compare between federal and State governments are their willingness and capacity to resist and obstruct each other's measures.

It has already been shown that federal officials will depend more on State officials than the reverse, and the people—the source of all power—incline more toward State governments. For these reasons alone, State governments are clearly advantaged. Furthermore, the personal outlooks that federal officials bring with them will generally support the States, while State officials will rarely carry any bias in favor of the central government. A local mindset is far more likely to dominate Congressmen than a national mindset will dominate State legislators. Everyone knows that a major reason why State legislatures make mistakes is because their members put their county or district’s interests above those of the entire State. If they can’t act for the welfare of even a single State as a whole, how could they put the Union’s prosperity and dignity above local priorities? By the same logic, federal legislators will tend to be too focused on local issues rather than national ones. For members of the federal legislature, the States will hold as much influence as counties and towns do for State legislators. Decisions will too often be based on how they might affect individual States, not how they impact the nation at large. What has been the usual tone of Congress? Reading its records, and hearing from those who have served there, shows that members have acted more as advocates for their States than as neutral defenders of all. Occasionally, the federal government has gained power at the expense of local concerns, but far more often, national interests have suffered from an exaggerated focus on local interests and prejudices. I don’t mean to suggest that the new federal government will not have a wider perspective than the current one, or that its focus will be as narrow as State legislatures, but it will still be influenced enough by State interests not to threaten the rights or authority of the States. By contrast, State officials will not feel similar loyalty to the Union, and they will have strong motives to draw power from the central government for themselves.

Even if we assume that the federal government is as inclined as the States to expand its powers beyond reasonable limits, the States would still have the advantage in resisting such encroachments. If a State passes an act that is unpopular with the federal government but popular within its own boundaries—and if it doesn’t blatantly break the oath of its officers—it will be carried out at once, using State resources and authorities. Federal opposition could only inflame local resistance, and the central government would be forced to use measures that are always difficult and often resisted. Conversely, if the federal government passes an overreaching or even a just but unpopular measure in particular States, the opportunities for resistance are powerful and immediate. The people's unrest, their reluctance or refusal to help federal officers, the opposition of State leaders, and legislative obstacles, would together create serious local difficulties—and, if several neighboring States acted together, obstacles the federal government would hardly wish to confront.

But ambitious overreach by the federal government into the authority of State governments would not provoke opposition from just a single State or a few States. Such actions would cause widespread alarm. Every State government would join together for their common cause. Communication would be established, resistance plans would be coordinated, and a united spirit would lead and sustain the whole effort. In short, the same alliances that would form in response to fear of federal tyranny as once did to fear of foreign control, and unless these innovations were voluntarily abandoned, there would be the same recourse to force as in the past. But what kind of madness could ever drive the federal government to such an extreme? In the struggle with Great Britain, one part of the empire was used against the other. The larger part infringed on the rights of the smaller part. That attempt was unjust and unwise; but it was not, in theory, completely impossible. However, what would a similar conflict look like in the situation we are imagining? Who would the parties be? A small group of representatives standing against the people themselves; or more accurately, one group of representatives confronting thirteen groups of representatives, with all their shared constituents supporting the latter.

The only remaining argument for those who predict the downfall of the State governments is the fanciful idea that the federal government could first gather a military force for its own ambitions. The reasoning already given in these papers ought to have rendered it unnecessary to disprove the reality of this danger now. That the people and States would keep electing, for a long enough period, a continuous sequence of men willing to betray both; that for this whole time, those traitors would methodically pursue a plan to expand the military; that both the governments and people of the States would calmly watch this looming threat and keep supplying it with resources until it was ready to turn against them—all this seems to anyone to be more like the incoherent dreams of wild jealousy, or the exaggerated fears of false zeal, than the sober caution of true patriotism. As extravagant as this idea is, let us still consider it. Suppose a standing army, fully as large as the nation’s resources allow, is formed and is entirely loyal to the federal government; even then, it would not be unreasonable to say that State governments, supported by their people, could still resist such a danger. The largest standing army that any nation can reasonably sustain is, by the best estimates, no more than one one-hundredth of its population, or one twenty-fifth of those fit for military service. In the United States, this would mean an army of only twenty-five or thirty thousand men. Against them would stand a militia of nearly half a million citizens, armed, led by officers chosen from among themselves, fighting for their own freedoms, and united under governments they trust and support. It is very doubtful whether such a militia could ever be conquered by an army so much smaller. Those who are most familiar with our last successful resistance to British arms will most strongly deny that possibility. In addition to being armed—a right Americans possess more than people of almost any other nation—the existence of local governments, to whom the people are attached and which appoint militia officers, forms a stronger barrier against the rise of tyranny than any possible under a single, centralized government. Despite the large military establishments in the kingdoms of Europe, stretched to the limits of public resources, their governments are still afraid to trust their people with arms. It is not certain that even just that measure would not be enough for the people to throw off their rulers. But if the people also had the advantage of local governments they had chosen, which could channel the national will and harness collective strength, along with officers chosen from among the militia by those governments and loyal to both, it can be stated with the highest confidence that every tyranny in Europe would soon be overthrown, despite all the legions protecting it. Let us not insult the free and brave citizens of America by suggesting they would be less able to defend rights already in their possession than people living under absolute power would be to seize theirs from oppressors. Let us instead stop insulting them by suggesting they might submit blindly and meekly to a long series of underhanded measures and thus ever have to make such a desperate resistance.

The argument just discussed can be summed up very simply and decisively. Either the way the federal government is to be formed will make it dependent enough on the people, or it will not. If it is dependent, that reliance will keep it from creating plans objectionable to those it represents. If not, it will lack the people's trust, and any attempted usurpation will be easily stopped by the State governments, supported by the people.

Considering the points made in this and the previous paper, they seem to prove most convincingly that the powers proposed for the federal government are no real threat to the States’ reserved powers, but are absolutely necessary to fulfill the purposes of the Union; and that the fears of the elimination of State governments are, at best, due to the overactive imaginations of those who sound them.

PUBLIUS

## FEDERALIST No. 47. The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts.

### For the Independent Journal. Wednesday, January 30, 1788.

MADISON

To the People of the State of New York:

Having discussed the general form of the proposed government and the overall balance of power assigned to it, I now move on to examine the specific structure of this government, and how this power is distributed among its parts.

One of the main objections raised by the more respectable critics of the Constitution is that it violates the political principle that the legislative, executive, and judiciary departments should be separate and distinct. In the design of the federal government, it is said, this essential safeguard for liberty has not been respected. The different powers are mixed and interwoven in such a way as to ruin all symmetry and order, and make some essential parts of the structure vulnerable to being overwhelmed by other parts.

No political truth is of greater inherent value or has more distinguished champions of liberty supporting it than the one at the heart of this objection. The accumulation of legislative, executive, and judicial powers in the same hands, whether with one, a few, or many people, and whether they acquired those roles by inheritance, self-appointment, or election, is rightly seen as the definition of tyranny. Therefore, if the federal Constitution truly concentrated power in this manner, or mixed powers in a way that posed a real risk of such concentration, no more arguments would be needed to provoke universal rejection of the system. However, I believe it will become clear to all that this charge is not valid, and that the principle it relies on has been misunderstood and misapplied. To develop a clear understanding of this important topic, we should look into what it really means for liberty that these three main powers of government should be separate and distinct.

The chief authority frequently cited on this subject is the famous Montesquieu. If he is not the originator of this crucial idea in political science, he certainly deserves credit for highlighting and recommending it so effectively. Let us first try to establish exactly what he meant.

Just as didactic writers on epic poetry have looked to Homer as the perfect model for the art, Montesquieu used the British Constitution as his standard, or as he put it, as the mirror of political liberty; and he laid out, as basic truths, the various key principles of that particular system. To avoid misinterpreting his meaning, let us look back to the source of the principle.

Even a brief look at the British Constitution shows that the legislative, executive, and judiciary departments are not completely separate and distinct. The executive leader is an essential part of the lawmaking authority. He alone has the power to make treaties with foreign powers, which, under certain conditions, carry the force of law. All members of the judiciary are appointed by him, may be removed by him at the request of both Houses of Parliament, and when he wishes, serve as one of his constitutional councils. One branch of the legislature also serves as an important council to the executive leader, and in other regards is the sole holder of judicial power in cases of impeachment and has ultimate appellate authority in all other matters. The judges themselves are connected with the legislative branch, as they attend and take part in its discussions, though they do not vote on laws.

From these facts, which guided Montesquieu’s analysis, it is clear that, in saying “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,” or, “if the power of judging be not separated from the legislative and executive powers,” he did not mean that these departments should have NO partial influence on, or control over, each other's actions. His actual meaning, according to his own words and even more clearly as shown in the example he used, is that when the WHOLE power of one branch is exercised by the same people who also hold the WHOLE power of another, then the very foundations of a free government are destroyed. This would have been the issue in the constitution analyzed by him if, for example, the king, as sole executive, also had all legislative power or absolute judicial authority; or if the legislature as a whole held complete judicial or executive power. But that is NOT a flaw of the British constitution. The executive ruler cannot make laws by himself (though he can veto them), nor serve as a judge (though he appoints those who do). The judges cannot exercise executive authority, even though they may have been appointed by the executive; nor can they perform legislative functions, though they may be consulted by lawmakers. Neither can the entire legislature issue judicial decisions, though two of its branches together can remove judges, and one branch has supreme judicial authority in some cases. Likewise, while one legislative branch takes part in executive functions, and another can try officers of the executive for misconduct, the full legislative branch does NOT possess executive power.

Montesquieu’s reasons for his maxim make his meaning even clearer. “When the legislative and executive powers are united in the same person or body,” he writes, “there can be no liberty, because fears may arise that THE SAME monarch or senate will ENACT tyrannical laws and EXECUTE them in a tyrannical way.” He adds: “If the power of judging were joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR. If it were joined to the executive, THE JUDGE might act as AN OPPRESSOR.” Some passages explain these reasons more fully, but as stated here, they make clear the meaning given above for Montesquieu's famous rule.

Examining the constitutions of the States, we find that, despite the strong and sometimes absolute language used to state this principle, not a single State has kept the different branches of power completely separate and distinct. New Hampshire, whose constitution was last formed, seems fully aware that it is impossible and unwise to avoid all mixing of branches, and thus declares “that the legislative, executive, and judiciary powers ought to be kept as separate from, and independent of, each other AS THE NATURE OF A FREE GOVERNMENT WILL ADMIT; OR AS IS CONSISTENT WITH THAT CHAIN OF CONNECTION THAT BINDS THE WHOLE FABRIC OF THE CONSTITUTION IN ONE INDISSOLUBLE BOND OF UNITY AND AMITY.” Accordingly, its constitution blends the branches in several respects. The Senate, part of the legislative branch, is also a court for impeachments. The President, head of the executive, is also the presiding officer of the Senate and, besides having a regular vote, casts the deciding vote in the case of a tie. The executive head is ultimately elected every year by the legislature, and his council is chosen each year by and from the legislators themselves. Several state officers are appointed by the legislature. Members of the judiciary are appointed by the executive.

Massachusetts’ constitution expresses this fundamental liberty more cautiously but clearly, stating “that the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them.” This is exactly Montesquieu’s doctrine as explained above, and is not violated by the plan adopted by the Convention. It only prohibits any entire department from exercising the powers of another. Yet even in Massachusetts’ constitution, the powers are partially mixed. The executive has a qualified veto on the legislature, and the Senate—a part of the legislature—serves as a court of impeachment for members of both the executive and judicial branches. The judiciary is appointed and may be removed by the executive (acting upon the legislature’s address). And several government officers are chosen each year by the legislature. Since appointments, especially to executive offices, are by nature an executive function, the drafters of this constitution, in this respect at least, have broken their own rule.

I will pass over the constitutions of Rhode Island and Connecticut, since they were framed before the Revolution—and even before this principle became a topic of political attention.

The constitution of New York contains no declaration on this subject, but it is very clear that it was framed while keeping in mind the danger of improperly blending the different departments. Nevertheless, it gives the executive magistrate partial control over the legislative department; and, even more, gives similar control to the judiciary department, going so far as to unite the executive and judiciary branches in the exercise of this control. In its council of appointment, members of the legislative branch are joined with the executive authority when appointing officers, both executive and judicial. Its court for the trial of impeachments and correction of errors includes one branch of the legislature along with the main members of the judiciary department.

The constitution of New Jersey has blended the different powers of government more than any of the previous examples. The governor, who is the executive magistrate, is appointed by the legislature; also serves as chancellor and ordinary, or surrogate of the State; is a member of the Supreme Court of Appeals, and presides, with a casting vote, over one of the legislative branches. That same legislative branch also serves as executive council to the governor and, with him, makes up the Court of Appeals. Members of the judiciary department are appointed by the legislature and can be removed by one branch of the legislative department, on the impeachment brought by the other.

According to the constitution of Pennsylvania, the president, who heads the executive department, is elected annually by a vote in which the legislative department holds the majority. Along with an executive council, he appoints members of the judiciary and forms a court of impeachment for the trial of all officers, both judicial and executive. The judges of the Supreme Court and justices of the peace appear also to be removable by the legislature; and the executive power of pardoning in certain cases is referred to the legislature as well. The members of the executive council automatically serve as justices of the peace throughout the State.

In Delaware, the chief executive magistrate is elected annually by the legislative department. The speakers of the two legislative branches serve as vice-presidents within the executive department. The executive chief, with six others—three appointed by each legislative branch—make up the Supreme Court of Appeals; he is joined by the legislative department in appointing other judges. In every state, it seems members of the legislature may also serve as justices of the peace; in this state, the members of one legislative branch are, by virtue of their office, justices of the peace, as are members of the executive council. The major officers of the executive department are appointed by the legislature, and one branch of the legislature forms a court of impeachments. All officers can be removed by request of the legislature.

Maryland has embraced the principle in the strongest terms, declaring that the legislative, executive, and judicial powers of government should always be separate and distinct from each other. Yet, its constitution makes the executive magistrate appointable by the legislature, and the members of the judiciary are appointed by the executive department.

Virginia’s language on this topic is even stronger. Its constitution declares, “that the legislative, executive, and judiciary departments shall be separate and distinct; so that neither shall exercise the powers properly belonging to the other; nor shall any person exercise the powers of more than one of them at the same time, except that the justices of county courts shall be eligible to either House of Assembly.” Despite this clear exception regarding inferior court members, we see that the chief magistrate and his executive council are appointed by the legislature; that two members of that council are replaced every three years at the legislature’s discretion; and that all major executive and judiciary offices are filled by the legislature as well. The executive prerogative of pardon is, in one instance, also placed in the hands of the legislative department.

The constitution of North Carolina, which states “that the legislative, executive, and supreme judicial powers of government ought to be forever separate and distinct from each other,” still assigns to the legislative department not just the appointment of the executive chief, but of all the main officers in both the executive and judiciary branches.

In South Carolina, the constitution makes the executive magistrate eligible by the legislative department. It also grants the legislature the power to appoint the members of the judiciary department, including justices of the peace and sheriffs, as well as officers in the executive branch, down to captains in the state’s army and navy.

In the constitution of Georgia, where it is declared “that the legislative, executive, and judiciary departments shall be separate and distinct, so that neither exercises the powers properly belonging to the other,” we still find that the executive department is filled with appointments made by the legislature; and the executive power of pardon is also finally exercised by them. Even justices of the peace are appointed by the legislature.

When citing these instances in which the legislative, executive, and judiciary departments have not been kept totally separate and distinct, I do not intend to advocate for the specific organization of any state government. I am fully aware that these constitutions, among many excellent principles they display, clearly show signs of the haste and even greater inexperience with which they were framed. It is all too obvious that in some cases the foundational principle being discussed has been violated by too great a mixture, and sometimes even an outright consolidation, of the different powers; and in no case has enough been done to maintain the separation in practice that was outlined on paper. All I wish to demonstrate is that the accusation against the proposed Constitution—that it violates the sacred principle of free government—is not justified by the real meaning given to that principle by its author, nor by the way it has been understood thus far in America. I will continue discussing this important subject in the next paper.

PUBLIUS

## FEDERALIST No. 48. These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other.

### From the New York Packet. Friday, February 1, 1788.

MADISON

To the People of the State of New York:

In the last paper, it was shown that the political maxim being considered does not require the legislative, executive, and judiciary departments to be completely unconnected with each other. Next, I will argue that unless these departments are sufficiently connected and blended so that each has a constitutional check on the others, the degree of separation this maxim calls essential for free government can never, in practice, be maintained.

Everyone agrees that the powers properly belonging to one department should not be directly and fully administered by either of the other departments. It is just as clear that none of them should possess, directly or indirectly, an overruling influence over the others in the execution of their own powers. Nobody will deny that power is by nature encroaching, and should be effectively restrained from overstepping the boundaries set for it. So, after distinguishing the various classes of power in theory—whether legislative, executive, or judiciary—the next and hardest challenge is to provide practical protection for each against invasion by the others. Determining what this protection should be is the primary issue to resolve.

Is it enough to clearly define these departments’ boundaries in the constitution and rely on these written limitations to check the encroaching nature of power? This seems to be the main safeguard trusted by the drafters of most American constitutions. But experience proves that the effectiveness of this solution has been greatly overestimated; and that stronger protection is absolutely necessary for the weaker departments against the more powerful ones. The legislative branch, everywhere, continues to expand its range of activity and draw all power into its own energetic orbit.

The founders of our republics deserve great credit for the wisdom they showed, so it is unpleasant to have to point out the mistakes they made. Yet, a commitment to truth requires us to note that they never appeared to take their eyes off the danger to liberty posed by the excessive and all-encompassing power of a hereditary executive, propped up by a hereditary branch of the legislature. They seemed to neglect the threat of legislative usurpations, which, by gathering all power into the same hands, can lead to just as much tyranny as executive overreach.

In a government where widespread and significant powers are entrusted to a hereditary monarch, the executive branch is rightly seen as the source of danger and watched with all the caution that a love of liberty demands. In a democracy, where a large assembly of people performs legislative functions themselves, and are always vulnerable to the ambition of their executive officers due to their inability to carry out careful deliberation and consistent planning, tyranny might also arise from the executive in times of crisis. However, in a representative republic—where the executive is carefully limited in both power and length of term, and the legislative power is held by an assembly that, thanks to its supposed influence over the people, assumes unwavering confidence in its own strength, and is numerous enough to feel all the passions of a crowd but not so numerous as to prevent reasoned action—it is against the ambitious encroachments of this legislative branch that the people should be most wary and invest all their defense.

The legislative department gains superiority in our governments from several other circumstances. Its constitutional powers are both broader and harder to strictly define, allowing the legislature to more easily disguise, through complex and indirect measures, its intrusions upon the other co-ordinate departments. Legislative bodies often face difficult questions as to whether the effects of a particular measure will, or will not, exceed the boundaries of their authority. In contrast, the executive power is confined within narrower limits, is simpler in character, and the judiciary’s domain is delineated by even clearer boundaries. Thus, any attempts at usurpation by the executive or judiciary are almost always immediately exposed and thwarted. More than this: since the legislative department alone controls public funding, and has, in some constitutions, complete discretion—and in all, dominant influence—over the salaries and rewards for officeholders in the other departments, the latter become dependent on the legislature. This dependence further enables legislative encroachment.

I have referenced our own experience to support these observations. If it were necessary to prove this further with specific examples, the evidence would be endless. I could find testimony from every citizen who has participated in, or paid attention to, public affairs. I could gather ample documentation from the archives and records of every State in the Union. For brevity and equal clarity, however, I will cite the example of two States, confirmed by two unimpeachable authorities.

The first example is Virginia—a State that, as we have seen, has clearly stated in its constitution that the three main departments should not be mixed. The supporting authority here is Mr. Jefferson, who, besides his other qualifications for observing government in action, actually served as the chief executive. To fully convey the impressions his experience gave him, it is necessary to quote a rather lengthy passage from his compelling Notes on the State of Virginia: “All the powers of government, legislative, executive, and judiciary, result to the legislative body. Concentrating these in the same hands is exactly the definition of despotic government. It makes no difference that these powers are exercised by many people, and not by one. One hundred and seventy-three despots would surely be as oppressive as a single one. Let anyone who doubts it look at the republic of Venice. Nor does it help that the officials are elected by ourselves. An ELECTIVE DESPOTISM was not the government we sought; but one based on free principles, in which governmental powers would be divided and balanced among several bodies of magistrates, so none could exceed their legal limits without being checked by the others. For this reason, the convention that established the government made it a foundation that the legislative, executive, and judiciary departments should be separate and distinct, and that no person should exercise powers from more than one at the same time. BUT NO BARRIER WAS PROVIDED BETWEEN THESE POWERS. The judiciary and executive members were left dependent on the legislature for their job security and, in some cases, their continuation in office. If the legislature then assumes executive and judiciary powers, there is unlikely to be effective opposition; and even if it arises, it cannot succeed, because the legislature can formalize its measures as acts of Assembly, making them binding on the other branches. Accordingly, IN MANY cases, THEY HAVE DECIDED RIGHTS that should have been left to the JUDICIARY, and their CONTROL OVER THE EXECUTIVE DURING THEIR SESSIONS HAS BECOME ROUTINE.”

The other State I will use as an example is Pennsylvania, with the supporting authority being the Council of Censors, which assembled in 1783 and 1784. This body’s duties, as set forth in the constitution, included “to inquire whether the constitution had been preserved inviolate in every part; and whether the legislative and executive branches had performed their duty as guardians of the people, or had assumed, or exercised, greater powers than they are entitled to by the constitution.” In fulfilling this trust, the council necessarily compared both legislative and executive actions against the constitutional powers for those branches. From the facts listed—most of which both sides of the body agreed were true—it appears the constitution had been blatantly violated by the legislature in many significant ways.

A large number of laws had been passed in violation of the rule that all public bills must be printed in advance for the people’s consideration—one of the main constitutional safeguards against improper legislative acts.

The constitutional right to trial by jury had been violated, and powers taken on that had not been granted by the constitution.

Executive powers had been seized.

Judges’ salaries, which the constitution required to be fixed, had sometimes been changed, and matters belonging to the judiciary often taken up by the legislature for settlement.

Those who wish to see the details under each category can consult the council’s published journals. Some of these violations may be explained by special conditions related to the war; but most were the natural outgrowth of a poorly constructed government.

It is also clear that the executive department itself was not always innocent of constitutional violations. There are three points, however, to consider here: FIRST, most of these cases were either direct results of wartime necessities, or were encouraged by Congress or the commander-in-chief; SECOND, in most other instances, the executive acted in line with either the explicit or clearly understood views of the legislature; THIRD, Pennsylvania’s executive department consisted of many members, making it as much like a legislative assembly as an executive council. Not having the check of individual responsibility for the body’s acts, and gaining confidence from shared precedent and collective influence, they were more likely to take unauthorized actions than an executive led by one or a few individuals.

The conclusion I am entitled to draw is that simply marking out the boundaries of the various constitutional departments on paper will not alone protect against the encroachments that lead to the dangerous concentration of all government power in the same hands.

Executive powers had been usurped.

## FEDERALIST No. 49. Method of Guarding Against the Encroachments of Any One Department of Government by Appealing to the People Through a Convention.

### For the Independent Journal. Saturday, February 2, 1788.

MADISON

To the People of the State of New York:

The author of the “Notes on the State of Virginia,” quoted in the last essay, appended to that valuable work a draft constitution, intended for submission at a convention expected to be called by the legislature in 1783 to establish a constitution for that state. The plan, like all the author’s work, shows original, thorough, and accurate thinking; it is especially notable because it reflects both a strong commitment to republican government and a clear understanding of the dangers that must be guarded against. Among his recommendations, and one on which he ultimately seems to rely as a safeguard for the weaker departments of power against encroachment by the stronger, is a measure perhaps entirely his own—and since it is so relevant to our present discussion, it should not be overlooked.

His proposal is: “that whenever any two of the three branches of government shall concur in opinion, each by a two-thirds vote of its members, that a convention is necessary to amend the constitution or CORRECT ITS BREACHES, a convention shall be called for that purpose.”

Since the people are the only true source of power, and since the constitutional charter that empowers all government branches comes from them, it seems fully in line with republican ideas that this original authority should be returned to—not just to expand, reduce, or restructure government powers, but also whenever one department oversteps the constitutional authority of another. Since the several departments are by definition equal in the authority of their commissions, none can rightly claim an exclusive or higher right to decide the boundary between their respective powers. So how, then, can the encroachments of the stronger be prevented, or the wrongs of the weaker remedied, except through an appeal to the people themselves, who as the source of the commissions alone can decide on their true meaning and ensure they are observed?

This reasoning is certainly powerful, and it must be granted that there should be a constitutional path for appeal to the people marked out and kept open for major or extraordinary occasions. However, there appear to be overwhelming objections to allowing such appeals to the people to serve as a regular means for keeping the branches of power within their constitutional bounds.

In the first place, this provision does not address the situation where two of the departments combine against the third. If the legislative authority—which has so many ways to influence the motives of the other departments—should manage to win over either of the others, or even just a third of its members, the remaining department would gain no advantage from this remedial provision. However, I will not dwell on this objection, since it may be considered more an argument against the modification of the principle than against the principle itself.

Next, it could be considered an inherent objection to the principle that, since every appeal to the people would suggest some flaw in the government, frequent appeals would largely deprive the government of the respect that time bestows on everything, and without which even the wisest and most free governments might lack needed stability. If it is true that all governments rest on opinion, it is equally true that the strength of opinion in each person, and its practical effect on his or her behavior, depend largely on how many others are believed to share that opinion. Human reason, like humans themselves, is timid and cautious when left alone, but gains firmness and confidence in proportion to the number with whom it is shared. When examples that reinforce opinion are both ANCIENT and NUMEROUS, they are known to have a doubled effect. In a nation of philosophers, we might disregard this concern. Reverence for the laws would be established solely by the voice of enlightened reason. But a nation of philosophers is no more likely to be found than the philosophical kings Plato wished for. In every other society, even the most rational government benefits from having the prejudices of the community in its favor.

The risk of disturbing public peace by excessively stirring up public passions is an even more serious objection to frequent referrals of constitutional questions to the entire society. Despite the success of previous revisions to our established forms of government—which speaks well for the virtue and intelligence of the American people—it must be admitted that such experiments are too delicate to multiply unnecessarily. We should remember that all the existing constitutions were formed under circumstances of danger that restrained the passions most disruptive to order and harmony; were shaped by enthusiastic confidence in patriotic leaders, which muted the usual diversity of opinions on major national issues; and by a universal desire for new and different forms, arising from resentment and anger toward the old government; at a time when no party spirit tied to the changes or reforms could influence the proceedings. The situations we are likely to face in the future offer no comparable security against the risks anticipated.

The biggest objection, however, is that decisions resulting from such appeals would likely not achieve the purpose of maintaining the constitutional balance of government. We have seen that republican governments tend to empower the legislative branch at the expense of the other departments. Thus, appeals to the people would usually come from the executive and judiciary. But no matter which side makes the appeal, would both sides stand an equal chance at trial? Let’s consider their respective positions. Executive and judicial members are few and known personally to only a small part of the public. The judiciary, because of their manner of appointment, the nature of their role, and the permanency of it, are too far removed from the people to benefit much from popular bias. Executive officeholders are typically targets of jealousy, and their administration is often subject to negative impressions and unpopularity. Members of the legislative branch, on the other hand, are numerous and broadly distributed among the people. Their ties of family, friendship, and acquaintance include a large proportion of the society’s most influential individuals. Their very office suggests a personal influence with the public and positions them as the immediate guardians of people’s rights and liberties. Given these advantages, it is hard to imagine that their opponents would have a fair chance at a favorable outcome.

Moreover, the legislative party would likely have more than just the advantage of arguing their case most effectively before the people; they would probably also become the judges. The same influence that got them elected to the legislature would likely get them a seat at the convention. Even if not all, many—certainly the leading figures upon whom all depends in such bodies—would be members. In short, the convention would be made up largely of men who had been, who currently were, or who expected to be, part of the department whose actions were under question. They would, therefore, be deciding issues in which they themselves were parties.

It’s possible, however, that appeals might occasionally be made under circumstances less disadvantageous to the executive and judiciary branches. Legislative abuses might sometimes be so flagrant and sudden as to defy any reasonable defense. A strong faction might arise within the legislature siding with the other branches. The executive might be someone particularly favored by the people. Under such conditions, the public’s decision might be less biased in favor of the legislative branch. But the decision could still never be expected to rest solely on the merits of the matter. It would inevitably be influenced by the dynamics of pre-existing parties or those created by the question at hand. It would be tied to the personalities of influential public figures, and decided by those who had been either agents of or opponents to the measures in question. In such instances, it would be the PASSIONS, not the REASON, of the public making judgment. Yet it is reason alone, not passion, that should govern and guide the government. The government’s role is to control and regulate the passions.

We established in the last paper that mere declarations in the written constitution are insufficient to keep the various departments within their lawful boundaries. It appears here that occasional appeals to the people would also be neither proper nor effective for this purpose. How far provisions of a different nature, like those previously quoted, might be adequate, I do not investigate. Some are certainly based on sound political principles, and all are crafted with remarkable ingenuity and precision.

PUBLIUS

## FEDERALIST No. 50. Periodical Appeals to the People Considered

### From the New York Packet. Tuesday, February 5, 1788.

MADISON

To the People of the State of New York:

IT MAY be argued that, instead of OCCASIONAL appeals to the people—which are subject to the previously noted objections—PERIODICAL appeals are the proper and effective way to PREVENT AND CORRECT CONSTITUTIONAL VIOLATIONS.

Let it be remembered that, in considering these options, I focus only on how well they can ENFORCE the Constitution by keeping the separate branches of government within their proper limits, not on their value for CHANGING the Constitution itself. From the standpoint of enforcement, periodical appeals to the people seem almost as unwise as appeals triggered by particular events. If the intervals between appeals are short, the actions up for review will be recent and linked to circumstances that tend to distort and undermine the purpose of occasional reviews. If the intervals are long, the same problem arises for recent actions, and for older issues, while time might allow for a more objective review, this benefit comes with disadvantages that seem to offset it. First, the distant prospect of public censure would be too weak a restraint on those in power, who might be driven by strong current motivations to overstep constitutional boundaries. Can anyone believe that a legislative body of a hundred or two hundred people, all focused intently on their favored objective and willing to break constitutional restraints to achieve it, would stop simply out of concern for being reviewed ten, fifteen, or twenty years later? Second, by the time the remedial measures could be applied, the abuses would often have already done their harm. Lastly, if that were not the case, the abuses would still have long endured, become deeply rooted, and so would not be easily removed.

The practice of revising a constitution for the purpose of correcting recent breaches—as well as for other reasons—has been tried in one of the States. The Council of Censors that met in Pennsylvania in 1783 and 1784 had, as we have seen, the goal “to determine whether the constitution had been violated, and whether the legislative and executive departments had encroached on one another.” This important and novel experiment deserves careful consideration in several respects. In some ways, perhaps, since it was a single experiment under somewhat unique circumstances, it is not absolutely conclusive. Yet as it relates to our discussion, it reveals certain facts that, I believe, fully and convincingly illustrate my earlier reasoning.

First. From the names of the gentlemen making up the council, it appears that at least some of its most active members had also played prominent roles in the pre-existing political parties of the State.

Second. Those same leading members of the council had also been influential figures in the legislative and executive branches during the years to be reviewed—in some cases as supporters, in others as opponents, of the very measures to be judged by the council. Two members had served as vice-presidents of the State, and several others had been members of the executive council in the previous seven years. One was a former speaker, and others were notable members of the legislative assembly in the same period.

Third. Every page of their proceedings shows how these circumstances influenced the character of their debates. Throughout the council’s existence, it was divided into two fixed and passionate parties—a fact the members themselves acknowledge and regret. Had that not been the case, the records still clearly show an unwavering opposition, as the same names constantly appear on opposing sides, regardless of the issue's importance or connection. Any impartial observer can conclude, without risk of error and without intending any personal criticism of either side or its members, that unfortunately PASSION, not REASON, must have guided their decisions. When people calmly and freely use their reason on many distinct issues, they will inevitably disagree on some. When driven by a shared passion, their stances—if they can even be called opinions—will always align.

Fourth. It is at least questionable whether the council’s decisions actually stayed within the constitutional limits for the legislative and executive branches, rather than misunderstanding or misapplying those limits.

Fifth. I have never heard that the council’s decisions on constitutional issues, whether right or wrong, ever changed the legislative interpretations in actual practice. In fact, unless I am mistaken, there was one instance where the legislature of the time rejected the council’s interpretation and actually prevailed in the dispute.

This censorial body, therefore, demonstrates through its investigations both the existence of the problem and, by its own example, the ineffectiveness of the proposed remedy.

This conclusion cannot be refuted by claiming that the State where this experiment took place was, at that time—and had long been—deeply agitated and divided by intense party conflict. Should we assume that at any future seven-year interval, this State will be free from parties? Should we assume that any other State, at any time, will be immune from such divisions? Such an outcome should neither be expected nor wished for, because the disappearance of political parties would mean either a universal fear for public safety or a total loss of liberty.

If we tried to solve the problem by barring from the assemblies—elected by the people to review prior actions of the government—anyone who had participated in the government during the period under review, that would not resolve the difficulties. Such tasks would likely fall to people with lesser abilities, who would be no better qualified in other respects. Even though these individuals might not have been directly involved in the administration and therefore not directly responsible for the actions being reviewed, they would probably have been associated with parties connected to those actions and would have been elected with their support.

PUBLIUS

## FEDERALIST No. 51. The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments.

### For the Independent Journal. Wednesday, February 6, 1788.

MADISON

To the People of the State of New York:

To what solution, then, can we finally turn, to maintain in practice the necessary distribution of power among the various departments, as established by the Constitution? The only answer is that, since all these external precautions are found to be insufficient, the deficiency must be addressed by designing the internal structure of the government such that its different parts, through their mutual relationships, help keep each other in their proper roles. Without claiming to fully explain this important concept, I will risk offering a few general observations, which may clarify the idea and help us better judge the principles and structure of the government planned by the convention.

To properly ensure that the different branches of government exercise their powers separately, which is widely accepted as essential to preserving liberty, it is clear that each branch should have a will of its own. Therefore, each should be set up so that its members have as little involvement as possible in choosing the members of the other branches. If this principle were strictly followed, it would mean that all appointments to the top executive, legislative, and judicial offices would be made by the people themselves, through channels completely independent from each other. Such a system might be less difficult to implement than it seems, but there would still be obstacles and added costs involved. Therefore, some deviations from the principle are necessary. With the judiciary especially, it might not be wise to strictly adhere to this principle—first, because unique qualifications are necessary for judges, so the main priority should be to use the selection method that best secures those qualifications; and second, because the permanent terms of these appointments will quickly remove any sense of dependence on those who appointed them.

Similarly, members of each branch should be as independent as possible from members of the other branches when it comes to the benefits attached to their offices. If the executive or judicial officers were not independent of the legislature in this respect, their independence in every other aspect would be only in name.

But the main protection against a gradual concentration of the different powers in the same branch lies in giving those who run each department both the constitutional means and personal reasons to resist encroachments by the others. The protection must, as always, be sized according to the risk of attack. Ambition must be used to counteract ambition. The personal interests of individuals must be linked to the constitutional rights of their offices. It might seem discouraging that such precautions are needed to guard against government abuses. But what is government itself but the greatest reflection on human nature? If people were angels, no government would be needed. If angels governed people, neither external nor internal restraints on government would be necessary. When designing a government run by people over people, the main difficulty is this: you must first empower the government to control the governed, and then require it to control itself. Dependence on the people is, undoubtedly, the main control on government; but experience has shown the need for additional safeguards.

This approach, using opposing and rival interests to make up for the lack of better motives, can be seen throughout human affairs, private as well as public. It is especially visible in all the smaller distributions of power, where the constant aim is to divide and organize offices so that each acts as a check on the others—so that everyone’s private interests help safeguard public rights. Such prudent designs are just as necessary when distributing the highest powers of the State.

Yet, it’s not possible to give each branch equal ability to defend itself. In a republic, legislative power naturally tends to dominate. The solution to this problem is to divide the legislature into separate branches, and to differentiate them, by different methods of election and contrasting principles of operation, as much as possible given their shared functions and dependence on society. Additional precaution may also be needed to guard against dangerous encroachments. Just as the heavy weight of the legislative branch requires it to be divided, the relatively weak executive may require reinforcement. At first glance, allowing the executive an absolute veto over legislation seems like a natural defense. But such power may not always be used decisively when needed and could be abused in extraordinary cases. Perhaps this lack of an absolute veto could be offset by connecting the weaker branch of the stronger department to the weaker department, so the former might protect the constitutional rights of the latter without losing sight of its own rights.

If the points made here are true, and if we use them to judge the State constitutions and the federal Constitution, it will be found that if the latter doesn’t match them perfectly, the former are much less able to meet this standard.

There are also two considerations especially relevant to America’s federal system, which make it particularly interesting.

First, in a single republic, all the power given up by the people is handed to one government, and safeguards against abuses come from dividing that government into separate and distinct branches. In America’s compound republic, the power surrendered by the people is first divided between two governments, and then each government’s share is further divided among separate branches. Thus, a double security for the people’s rights is created. The different governments will check each other, while each will also be checked internally.

Second, in a republic it’s critical not only to protect society from oppression by its leaders, but also to shield one segment of society from injustice by another. Different interests inevitably exist among different groups of citizens. If a majority with a shared interest forms, the rights of the minority become vulnerable. There are only two ways to guard against this: first, by creating, within the community, a will independent of the majority—that is, separate from society itself; second, by making society so diverse, with so many different groups, that it becomes unlikely, if not impossible, for an unjust majority to form. The first approach is used in governments with hereditary or self-appointed authority. At best, this provides shaky security, because an authority independent from the people can support the unjust goals of the majority just as easily as it can protect the minority, and could even turn against both. The second method is illustrated by the federal republic of the United States. While all authority comes from and depends on the people, society itself will be divided into so many groups, interests, and classes that individual and minority rights will be much safer from the interests of the majority. In a free government, the protection of civil rights must be the same as that for religious rights. In civil affairs, this protection is achieved by a diversity of interests; in religious matters, by a diversity of sects. The degree of protection in both relies on the number of distinct interests and sects, which in turn depends on the size of the country and the number of people under the government. This perspective should make a sound federal system particularly appealing to all sincere supporters of republican government, since it shows that the more the territory of the Union is broken up into smaller confederacies or States, the easier it will be for oppressive majorities to form, and the best security for the rights of all classes of citizens will be reduced. As a result, the stability and independence of some parts of government—the only other protection—would have to be increased accordingly. Justice is the purpose of government. It is the goal of civil society. It always has been, and always will be, pursued until it is achieved, or until liberty is lost in the pursuit. In a society where a powerful majority can easily unite to oppress the weaker, anarchy may prevail just as it does in the state of nature, where the weak are not protected from the strong; and just as, in that natural state, even the strong often want government for their own protection, so too, in the ungoverned society, the most powerful parties may eventually long for a government that will protect everyone. It can hardly be doubted that, if Rhode Island were separated from the Confederacy and left on its own, the lack of security under such a small, popular government would lead to repeated abuses by majority factions, until even those very factions demanded some outside power, independent of the people, to correct the misrule. But in the extended republic of the United States, among its great variety of interests, parties, and sects, it would be rare for a majority alliance to form on any other basis than justice and the general welfare; with less risk to the minority from the majority, there is also less need to introduce into the government a will independent of the majority, or in other words, a will independent from the society itself. It is as true as it is important—despite what some think—that the larger the society (as long as it’s still manageable), the better it can self-govern. Fortunately for the REPUBLICAN CAUSE, this practical sphere can be greatly enlarged by carefully combining and adapting the FEDERAL PRINCIPLE.

PUBLIUS

## FEDERALIST No. 52. The House of Representatives

### From the New York Packet. Friday, February 8, 1788.

MADISON

To the People of the State of New York:

Moving from the broader topics covered in the last four papers, I will now examine in detail the different parts of the government, starting with the House of Representatives.

The first aspect to consider regarding this part of the government is the qualifications of both voters and the people eligible to be elected. The qualifications for voters are to be the same as those of the electors of the most numerous branch of the State legislatures. Defining who has the right to vote is rightly regarded as a fundamental part of a republican government. It was therefore necessary for the convention to define and establish this right in the Constitution. Allowing Congress to regulate it as they saw fit would have been inappropriate for this very reason. Handing this power to the legislatures of the States would also have been inappropriate, both for the reason just mentioned and because it would have made that branch of the federal government too dependent on State governments, when it should depend only on the people. Trying to impose a single, uniform rule for voter qualifications in all States would likely have been unacceptable to some States and difficult for the convention to achieve. The solution adopted by the convention appears, then, to be the best available. It should satisfy every State, because it aligns with the standards already established, or that may be established, by the States themselves. It is safe for the United States, because qualifications, being set by State constitutions, cannot be easily altered by State governments, and there is little fear that the people of the States will change their constitutions in a way that removes the rights protected by the federal Constitution.

The qualifications for those eligible to be elected have been less carefully and less consistently defined in the various State constitutions, and are more suitable for uniform treatment. The convention, therefore, appropriately addressed and regulated these. A representative of the United States must be at least twenty-five years old, must have been a citizen for seven years, must, at the time of election, live in the State they are to represent, and while serving, must not hold any office under the United States. These reasonable restrictions ensure that this part of the federal government is open to people of all kinds—whether native-born or naturalized, young or old, rich or poor, and regardless of religious beliefs.

The length of the term for which representatives are elected is the next issue to consider for this branch. To decide if this arrangement is appropriate, two questions must be addressed: first, whether elections every two years will be sufficiently safe; and second, whether such elections are necessary or useful.

First. Since it's vital to liberty that the government generally shares the people’s interests, it is especially important that this branch directly depends on, and empathizes with, the people. Frequent elections are unmistakably the only way to ensure this dependence and connection. However, determining the ideal frequency to achieve this is not possible with exactness and depends on a variety of related circumstances. Let us look to experience—the best guide whenever possible.

The system of representative government—used as a substitute for direct gatherings of citizens—was barely known in ancient governments, and only in more recent times can we find instructive examples. Still, in order not to make our research too broad, we should focus on the few best-known examples similar to our situation. The first model that fits is the House of Commons in Great Britain. The history of this body before Magna Charta is too unclear to be useful. Some historians have even questioned its existence during that period. Early records after that time show that parliaments were expected only to sit yearly, not to be elected yearly. Even these annual sessions were so subject to the monarch’s will that, under many excuses, the king frequently arranged for long and dangerous delays. To correct this, a law during Charles II’s reign said that these delays should not go beyond three years. With the coming of William III and the resulting revolution, the matter was taken up again more seriously, and it was declared a basic right that parliaments should be held FREQUENTLY. In another statute, passed not long after, “frequently”—which had previously meant triennial meetings as set in Charles II’s time—was clarified to mean that a new parliament must be called within three years of the last. The last change, from three to seven years, was introduced early in the present century because of anxiety about the Hanoverian succession. From all of this, it seems that the maximum frequency of elections regarded as necessary in that country for keeping representatives accountable is every three years. If we look at the degree of liberty maintained even under seven-year elections (along with other flaws in their parliamentary system), we can be confident that if the term were reduced from seven to three years and necessary reforms made, the people’s influence over their representatives would be greatly increased. Therefore, biennial elections for the federal system cannot possibly endanger the necessary connection between the House of Representatives and their constituents.

Elections in Ireland, until recently, were controlled entirely by the crown, and were rarely held except upon the coming of a new monarch or other special event. The parliament that began under George II lasted his entire reign—about thirty-five years. The representatives’ only real connection to the people was the right of electing new members to fill vacancies and the rare chance for a general new election. Additionally, the Irish parliament’s ability to defend their constituents’ rights, when they wanted to, was very limited by the crown’s control over their business. Lately, if I am not mistaken, these limitations have been lifted, and now parliaments in Ireland last eight years. What that reform’s impact will be remains to be seen. The Irish example is not very enlightening for our situation. If anything, it suggests that if the Irish people could retain any liberty under such disadvantages, biennial elections would provide even more liberty—ensuring a proper relationship between representatives and the people.

Let’s look at a closer example: our own States as British colonies, a subject familiar enough to need little explanation. The principle of representation—in at least one legislative branch—was established in all the colonies, though election intervals varied from one to seven years. Is there any reason to think, judging from the attitudes and actions of colonial representatives before the Revolution, that biennial elections would have been dangerous to public liberty? The passion displayed everywhere at the start of independence proves that enough liberty was enjoyed to make people value it and strive for more. This is as true for the colonies with the least frequent elections as for those with the most frequent. Virginia was the first to oppose parliamentary usurpation and the first to formally declare independence. Yet, as far as I know, elections under its old government were held every seven years. I mention this not to claim any special virtue, since the order may have been accidental, and definitely not to suggest seven-year elections are preferable—in fact, compared to more frequent elections, such long intervals are unacceptable. The example merely supports my main point: it is convincing evidence that the people’s liberties are not endangered by biennial elections.

This conclusion is further supported by three important facts. First, the federal legislature will have only part of the legislative authority that is held by the British Parliament, or that was exercised almost without exception by colonial or Irish legislatures. A well-established, logical principle says the greater the power, the shorter its term should be; conversely, the less the power, the longer its term can safely be. Second, as explained elsewhere, the federal legislature will be checked not only by its dependence on the people, as with other legislative bodies, but also by oversight from several State legislatures—an extra safeguard that other legislative bodies do not have. Third, the more permanent branches of the federal government will not have nearly the same means to sway the House of Representatives from their duty as exists in the other governments examined above. Therefore, with less power to misuse, federal representatives have fewer temptations one way and will be more carefully watched on the other.

PUBLIUS

## FEDERALIST No. 53. The Same Subject Continued (The House of Representatives)

### For the Independent Journal. Saturday, February 9, 1788.

MADISON

To the People of the State of New York:

Here, I may be reminded of the common saying: “where annual elections end, tyranny begins.” While it is often noted that sayings become proverbs because they are generally rooted in reason, it is no less true that, once established, they are often applied to situations where their original reasoning does not fit. I need look no further for proof than our current situation. What is the rationale behind this old saying? No one would seriously claim that there is a natural connection between the passage of the sun or seasons and the length of time human virtue can resist the temptations of power. Fortunately for humanity, liberty in this regard is not limited to any single point in time, but exists within a range that allows enough flexibility for the varying needs and circumstances of a society. The election of officials could, if necessary, be daily, weekly, or monthly, as it has sometimes been, as well as annually. If circumstances may require deviating from the rule on one side, why not on the other? Looking at our own practices for electing the largest branches of the State legislatures, we see that the timing is not consistent—just as it isn’t in the election of other officials. In Connecticut and Rhode Island, elections are every six months. In other States, except South Carolina, they are annual. In South Carolina, and as proposed for the federal government, they are biennial. The longest period is four times as long as the shortest; yet, it would be difficult to argue that Connecticut or Rhode Island is governed better or enjoys more liberty than South Carolina, or that either is notably different in these ways from the States whose election systems differ from both.

Looking for the reasoning behind this doctrine, I find only one, and it doesn’t apply to our case. The important distinction—well understood in America—between a Constitution created by the people and unchangeable by the government, and a law created and changeable by the government, was little understood and even less observed elsewhere. Wherever the highest lawmaking power resided, it was presumed that it also had the authority to change the form of government itself. Even in Great Britain, where political and civil liberty have been most discussed, and where the rights protected by the Constitution are spoken of most, it is held that Parliament’s authority is supreme and cannot be challenged—even over the Constitution itself. Parliament has, in several cases, actually changed major elements of the government by legislative act. In particular, they have changed the term of elections on several occasions; on the last occasion, not only replacing triennial with septennial elections, but even extending their own term for four years beyond what the people had chosen. The alarm caused by these dangerous actions has inspired a reasonable fear in defenders of free government, who see frequent elections as fundamental, and has driven them to seek a safeguard for liberty against such dangers. Where it was not possible to have a Constitution above the government, a constitutional safeguard like that established in the United States could not be created. Some other protection, then, had to be found; and what better option was there than to highlight some simple, familiar period of time as a standard for measuring the potential danger from changes, for setting public sentiment, and for uniting patriotic action? The simplest and most easily understood period relevant to the matter is a year; and so the doctrine has arisen—out of genuine concern for protecting against the gradual erosion of rights under unlimited government—that progress towards tyranny should be judged by the deviation from annual elections. But why would we need to use such methods with a government limited, as ours will be, by a higher Constitution? Who will claim that Americans’ liberty won't be more secure under biennial elections, permanently fixed by a Constitution, than that of any other nation where elections are annual, or even more frequent, but can be easily changed by the government?

The second question raised is whether biennial elections are necessary or useful. The answer to this will become clear from some very straightforward points.

No one can be a competent legislator without adding to an honest intention and sound judgment a certain level of knowledge about the subjects on which he is to make laws. Part of this knowledge can be gained through information available to both private individuals and those in public office. Another part can only be truly acquired through actual experience in the position where it is needed. Therefore, the length of service should, in all such cases, be proportional to the amount of practical knowledge required for effective service. As we've seen, the period of legislative service set in most States for the more numerous branch is one year. The question, therefore, may be simply put: does a two-year period correspond more closely to the knowledge needed for federal legislation than a one-year period does to the knowledge required for State legislation? The very statement of the question, in this form, suggests the right answer.

In a single State, the necessary knowledge relates to existing laws, which are uniform within that State and with which most citizens are somewhat familiar, as well as to the general affairs of the State, which are confined in scope, not very diverse, and often discussed among all classes. The vast stage of the United States presents a different picture. The laws are far from uniform; they differ from State to State. Public affairs of the Union cover a large territory and are greatly varied by local matters linked with them, making it difficult to understand these differences outside the central councils, where representatives from all parts of the nation bring their knowledge. Yet members from each State ought to have some knowledge of the affairs, and even the laws, of all the States. How can foreign trade be properly regulated by uniform laws without some familiarity with the commerce, ports, customs, and regulations of the various States? How can trade between States be effectively governed without understanding their relative circumstances in these and other respects? How can taxes be wisely laid and properly collected if not adapted to different laws and local situations across the States? How can uniform militia regulations be enacted without similar knowledge of the many internal distinctions among the States? These are key goals of federal legislation, which make it clear just how much information the representatives should gain. Other internal matters will require a similar level of understanding.

It's true that over time, many of these difficulties will become much less challenging. The hardest job will be establishing the government and creating an initial federal code. Improvements after the first versions will get easier and less frequent every year. Past government actions will provide ready and accurate information for new members. The nation's affairs will increasingly become topics of interest and conversation among all citizens. Further, increased interaction between people from different States will help spread mutual knowledge of their situations, which in turn will lead to a general similarity in their customs and laws. But even with all these changes, federal legislative business will always be so much newer and harder than that of a single State, that it justifies the longer term of service for those who conduct federal tasks.

Another area of knowledge needed by federal representatives, not yet mentioned, is foreign affairs. To regulate our own commerce, they must be familiar not only with treaties between the United States and foreign countries but also with the trade policies and laws of those nations. They should not be ignorant of international law, insofar as it is a subject of national legislation, for it falls under federal authority. Even though the House of Representatives does not directly engage in foreign negotiations and agreements, the close connection between different branches of public affairs will often require attention to these areas in ordinary legislation, and sometimes will need particular legislative approval and cooperation. Some of this knowledge can certainly be learned through private study, but some of it must come from public sources, and all of it is best gained through practical attention during actual legislative service.

There are other points, perhaps of less importance, but still worth noting. The long distances many representatives have to travel, and the arrangements necessary because of this, might discourage suitable men from serving if the term were limited to a single year, whereas a two-year term is more reasonable. No argument can be made from the example of delegates to the current Congress. They are elected yearly, it is true, but their re-election is almost automatic by the legislative assemblies. The election of representatives by the people would not follow the same pattern.

As in all such assemblies, a few members will have superior talents and, through frequent re-elections, will become experienced and well-versed in public business, and perhaps wish to take advantage of that. The more new members there are and the less informed the majority is, the easier it will be for them to fall into traps that may be set for them. This is equally true in the relationship between the House of Representatives and the Senate.

It is a drawback—mixed with the advantages—of our frequent elections, even in large single States with only one legislative session per year, that irregular elections cannot be investigated and overturned in time to matter. If someone can secure a seat, no matter how unlawfully, the irregular member, who is seated as a matter of course, will hold it long enough to serve his purposes. This gives too much encouragement to using illegal means to obtain a seat. If federal legislature elections were held annually, this danger would be especially serious in distant States. Each house is, as necessary, the judge of the elections, qualifications, and returns of its own members. No matter what improvements might be made to speed up disputed cases, so much of a year would unavoidably pass before an illegitimate member could be removed that the threat of losing the seat would hardly discourage people from unfair practices.

Taking all these points together, we can confidently state that biennial elections will be as beneficial to public affairs as they will be safe for the people's liberty.

PUBLIUS

## FEDERALIST No. 54. The Apportionment of Members Among the States

### From the New York Packet. Tuesday, February 12, 1788.

MADISON

To the People of the State of New York:

The next topic I will address about the House of Representatives is the allocation of its members among the States, which is to be determined by the same rule as that for direct taxes.

It's not argued that the population of each State shouldn't be the standard for determining the proportion of those who represent the people of each State. The same rule for dividing taxes will likely be challenged even less; though, in this case, the rule isn't based on the same principle. With representation, the rule is connected to the rights of individuals—a natural and universal link. For taxes, it relates to the share of wealth, for which it is never a precise measure and often not a proper one at all. Nevertheless, flawed as it is when applied to the relative wealth and contributions of the States, it is the least objectionable among available options and had been so recently accepted across America that the convention justly preferred it.

This is all accepted, some might say; but does it follow, from allowing numbers to measure representation, or the combination of slaves and free people to measure taxes, that slaves should be counted by the same rule for representation? Slaves are seen as property, not as people. They should therefore be included in property-based tax estimates, but excluded from representation, which is based on counting persons. This, as I understand, is the strongest form of the objection. I will now state the reasoning that may be offered on the other side just as fairly.

“We agree,” a Southern delegate might say, “that representation relates mainly to persons and taxation mainly to property, and we support this distinction as it applies to our slaves. But we deny that slaves are viewed merely as property and not at all as persons. The reality is that they possess qualities of both: by our laws, they are treated in some ways as people and in others as property. Forced to work, not for their own benefit but their master's; sold from one owner to another; and subject at any time to have their freedom restricted and be punished at the whim of another—the slave may seem to be degraded from humanity and classed with animals considered property by the law. But when protected in his life and limbs from violence by anyone, even his own master; and when he is punishable for violent acts against others—the slave is, by the law, clearly recognized as part of society, not as mere property. The federal Constitution therefore properly recognizes the mixed status of our slaves, who are both people and property. That is in fact their true status, and it is how their own laws have defined them; which should be the criteria, since it's only because the law has made negroes into property that their place in the count is ever questioned; and it's agreed that if the law restored the rights taken from them, they could not be denied an equal share of representation.

“This question can be seen another way. It is agreed that population is the best basis for taxes as well as the only true basis for representation. Would the convention have been fair or consistent if it omitted slaves from the list of inhabitants when calculating representation, yet included them when setting taxes? Should the Southern States have been expected to agree to a system that viewed their slaves as partly people when burdens were imposed, but not when advantages were distributed? Isn't it a bit surprising that those who criticize the South for treating fellow humans as property should themselves argue that the government, in which all States are partners, should treat this unfortunate group even more purely as property than the very laws they criticize?

“It can be answered that, in their own States, slaves are not counted for representation. They neither vote nor enlarge their masters' votes. So, why should they be counted in the federal allocation of representatives? If they were omitted entirely, the Constitution would then follow the very examples the critics cite.

“This objection can be countered by one point. The proposed Constitution is based on a central principle: the overall number of representatives assigned to the States is set by a federal rule based on each State's population, and the right to choose that number in each State rests with the portion of inhabitants that the State itself chooses to empower. The qualifications for voting differ from State to State, sometimes significantly. In every State, some people are denied the vote by State law, but are still included in the federal census for assigning representatives. The Southern States could counter, saying the rule accepted by the convention demands that the policies of any State toward its own people should not matter; therefore, slaves, as inhabitants, should be fully counted in the census as are other people who aren't given citizen rights by some States' policies. However, those who would benefit from a strict implementation of this rule are willing to set it aside. All they ask is that the same spirit be shown on the other side. Let the peculiar case of the slaves be seen honestly. Let the constitutional compromise be mutually accepted, viewing them as inhabitants, yet diminished by servitude beneath free inhabitants; so the SLAVE is counted as three-fifths of a MAN.

“After all, isn't there another perspective that could provide an even easier defense of this section of the Constitution? So far, we've considered representation as relating only to persons and not at all to property. But is this entirely accurate? Government is established just as much for the protection of property as it is for the protection of individuals. Both considerations, therefore, may be represented by those in charge of government. Based on this principle, in several States—especially in New York—one branch of government is specifically intended to safeguard property and is therefore elected by the segment of society with the greatest interest in this function of government. In the federal Constitution, this policy does not apply. The rights of property are placed in the same hands as personal rights. Some consideration should therefore be given to property when determining who is chosen for these responsibilities.

“For another reason, the votes granted in the federal legislature to the people of each State should reflect, to some extent, the relative wealth of the States. Unlike individuals, States do not have influence over one another as a result of greater fortunes. If a wealthy citizen is entitled to only one vote in choosing a representative, often the respect and influence from his wealth guides the votes of others towards his preferred candidates; through this subtle channel, property interests are represented in public matters. A State does not exert such influence over other States. It's unlikely that the wealthiest State in the Confederacy will ever influence the choice of even one representative in another State. Nor will representatives from larger and wealthier States have any other advantage in the federal legislature over representatives from other States except that resulting solely from their larger numbers. Therefore, any advantages to which their greater wealth and population may entitle them should be secured by providing them with a proportionally larger share of representation. In this respect, the new Constitution differs significantly from both the current Confederation and that of the United Netherlands, as well as other similar unions. In the latter cases, the effectiveness of federal resolutions depends on the follow-up and voluntary compliance of the States within the union. Therefore, while States have an equal vote in federal councils, their actual influence corresponds to the varying importance of their compliance. Under the proposed Constitution, federal actions will take effect without needing the direct involvement of individual States. They will rely solely on majority votes in the federal legislature, so that each vote, regardless of whether it comes from a large or small, rich or less wealthy State, will carry equal weight and effect—just as each representative's vote in a State legislature is considered equal, regardless of the size of the district he represents. If there is any difference, it is due to the personal merits of the representative himself, rather than the size of the constituency.”

Such reasoning could be employed by someone supporting Southern interests on this issue; and even if it seems somewhat forced in certain respects, overall I must admit that it fully reconciles me to the scale of representation established by the convention.

In one sense, setting a common standard for both representation and taxation will have an especially beneficial effect. Since the accuracy of the census to be taken by Congress will depend considerably on the willingness, or at least the cooperation, of the States, it's important that the States have as little incentive as possible to overstate or understate their populations. If their number of representatives were determined only by this rule, they would be tempted to artificially inflate their population counts. If their share of taxation were decided exclusively by this rule, they would be tempted to understate their numbers. By applying the rule to both representation and taxation, the States' conflicting interests will counterbalance each other, leading to the necessary impartiality.

PUBLIUS

## FEDERALIST No. 55. The Total Number of the House of Representatives

### For the Independent Journal. Wednesday, February 13, 1788.

MADISON

To the People of the State of New York:

The size of the House of Representatives is another significant aspect to consider regarding this branch of the federal legislature. In fact, few elements of the entire Constitution have received more attention due to the weight of authority and the apparent force of the arguments used against it. The objections raised are: first, that such a small number of representatives will not adequately protect the public interest; second, that they will lack sufficient knowledge of the local situations of their numerous constituents; third, that the representatives will come from classes least likely to identify with the common people and most likely to seek permanent power for a privileged few; fourth, that even though the number is insufficient at the start, as the population grows, the number of representatives will not increase accordingly, leading to an ever-greater imbalance.

Generally, it can be said that no political issue is less susceptible to a definite answer than the one concerning the optimal number for a representative legislature; nor is there another issue on which State practices differ more, whether comparing their legislative assemblies directly or in relation to the number of their constituents. Setting aside the differences between the smallest and largest States—for instance, Delaware's largest legislative branch has twenty-one representatives, while Massachusetts’s has between three and four hundred—even among similarly populated States the differences are striking. Pennsylvania has no more than one fifth the number of representatives as Massachusetts. New York, with a population six-fifths the size of South Carolina’s, has barely more than one third the number of representatives. There are just as wide disparities between Georgia and Delaware or Rhode Island. In Pennsylvania, there is one representative for every four or five thousand residents. In Rhode Island, the ratio is at least one for every thousand. According to Georgia’s constitution, the ratio may be as high as one representative for every ten voters, and it will undoubtedly far exceed the ratio in any other State.

Another general observation is that the ratio between representatives and the people shouldn't be the same in very populous States as in less populous ones. If the number of representatives in Virginia were set by Rhode Island’s standard, it would now be between four and five hundred, and in twenty or thirty years, it would reach a thousand. Conversely, if Pennsylvania’s ratio were applied to Delaware, Delaware’s assembly would consist of only seven or eight members. Nothing is more misleading than to base our political calculations purely on mathematical reasoning. Sixty or seventy men may be more fit to hold a certain amount of power than six or seven. But it doesn’t follow that six or seven hundred are proportionally better, and if we increase the number to six or seven thousand, the logic is completely reversed. In reality, a minimum number is necessary for meaningful discussion and to prevent collusion for improper purposes; but any assembly must also be capped to avoid chaos and disorder. In any very large assembly—no matter its members—emotion always takes precedence over reason. Had every Athenian been a Socrates, their assemblies would still have been mobs.

We should also remember what was said about biennial elections. Just as Congress’s limited powers and oversight by State legislatures justify less frequent elections than might otherwise be considered safe, so too do these factors mean that Congress can be smaller than if it held unfettered legislative authority.

Keeping these points in mind, let’s examine the objections to the proposed size of the House. The first charge is that so small a group cannot be safely trusted with so much power.

At the start of the government, the House of Representatives will have sixty-five members. A census will be taken within three years, after which the number may increase to one for every thirty thousand inhabitants; every ten years after that, the census will be renewed and the number of representatives may be increased according to the same ratio. It's not unreasonable to expect that the first census will raise the number of representatives to at least one hundred. Estimating slaves at three-fifths, it’s hardly doubtful that the population of the United States will by then, if not already, reach three million. In twenty-five years, at expected rates of growth, the number of representatives could reach two hundred, and within fifty years, four hundred. I believe this should end any worries about the small size of the chamber. I assume here—as I will show later when answering the fourth objection—that the number of representatives will actually increase as allowed by the Constitution. If it didn’t, the objection would carry considerable weight.

The real question, then, is whether the small size of the House, as a temporary measure, is dangerous to public liberty. Is it safe for sixty-five members, and for a short time a hundred or two hundred, to wield limited, carefully regulated legislative authority over the United States? I must admit that I could not answer “no” to this question unless I completely disregarded everything I've learned about the nature of the American people, the spirit animating the State legislatures, and the guiding political principles shared by citizens of all classes. I cannot believe that, in their current mood—or under any circumstances likely to occur soon—the American people would choose, or continue to re-elect every two years, sixty-five or a hundred men willing to plan and engage in tyranny or betrayal. I cannot believe that the State legislatures, having so many motivations and means to keep watch, would fail to catch or stop any conspiracy by the federal legislature against the freedoms of their shared constituents. I equally cannot believe that, at present or in the near future, there are even sixty-five or a hundred people in the United States likely to be chosen for office who would either want or dare, in just two years, to betray their serious trust. What changes the future and a greater population might bring are matters only a prophet can foresee, and I make no such claims. But, considering the current situation and what is likely in the near future, I must say that American liberty is in no danger with the number of representatives provided by the federal Constitution.

Where could such danger come from? Are we concerned about foreign bribes? If foreign gold could so easily corrupt our federal officials and enable them to betray the people, how did we become a free and independent nation? The Congress that led us through the Revolution was smaller than its successors will be; it wasn't chosen by, or directly accountable to, the people. Although appointed annually and subject to recall, members typically served three years—sometimes longer before the federal articles were adopted. Their deliberations were always confidential; they handled all international matters; and throughout the war, they had more control over the nation’s fate than any future representatives should ever have. Given the high stakes and strong opposition, it’s reasonable to assume that corruption would have been attempted. Yet history shows that public trust was not violated; nor has our public life, in this respect, suffered even from rumor.

Is the threat feared from the other branches of the federal government? But how would the President, the Senate, or both obtain these means? Their official pay will, presumably, be no more than sufficient for just their duties, and without some initial corruption of the House of Representatives, will not be a threat. Their personal wealth—as fellow American citizens—cannot possibly be a source of danger. Thus, their only conceivable instrument is the granting of appointments. Is this the focus of suspicion? We sometimes hear that the President will use appointments to corrupt the Senate; now, supposedly, the House is to be compromised as well. The unlikelihood of such a corrupt and treacherous alliance among officials—each standing on foundations as different as republican principles allow, and all accountable to society—should alone put this fear to rest. But, fortunately, the Constitution provides even more protection. Members of Congress are ineligible for any civil office that’s created or whose pay is increased during their term. Therefore, only offices that become vacant naturally can be given to sitting members; to assume that this is enough to “buy” the people's guardians—chosen by the people themselves—is to abandon all normal reasoning and embrace irrational, limitless suspicion. Sincere supporters of liberty who get carried away by such unchecked distrust don't realize the harm they're doing to their own cause. Just as there is some corruption in mankind that warrants caution and suspicion, so too are there admirable traits that justify trust and respect. Republican government presumes that these virtues exist to a greater extent here than under any other system. If the unflattering portraits painted by some critics were true to human nature, it would suggest men are unsuited for self-government and that only despotism could keep them from tearing each other apart.

PUBLIUS

## FEDERALIST No. 56. The Same Subject Continued (The Total Number of the House of Representatives)

### For the Independent Journal. Saturday, February 16, 1788.

MADISON

To the People of the State of New York:

The second criticism of the House of Representatives is that it will be too small to thoroughly understand the interests of its constituents.

Since this objection clearly comes from comparing the proposed number of representatives to the vast size of the United States, the number of its inhabitants, and the variety of their interests—without considering at the same time the circumstances that make Congress different from other legislative bodies—the best response is to briefly explain these unique features.

It is a sound and important principle that a representative should be familiar with the interests and circumstances of those he represents. But this principle only extends to those topics and interests that fall under the authority and responsibility of the representative. Lacking knowledge of numerous minor and particular matters, which are outside the scope of legislation, does not conflict with any essential quality needed to faithfully perform the legislative trust. To judge the amount of information required to exercise a particular authority, we must focus on the subjects covered by that authority.

What are the objectives of federal legislation? The most important, and those that would seem to most require local knowledge, are commerce, taxation, and the militia.

To properly regulate commerce does require significant information, as noted elsewhere; but as far as this information concerns the laws and local conditions of each individual State, a very small number of representatives would be enough to carry it to the federal councils.

Taxation will largely involve duties that fall under the regulation of commerce, so the previous observation applies here as well. In cases of internal collections, broader knowledge of the State's circumstances may be required. However, won’t a very small group of intelligent men, elected from across the State, have this knowledge sufficiently? Divide the largest State into ten or twelve districts, and you will find that there are no local interests in any district which the representative of that district would not understand. In addition to this source of information, the laws of the State, created by representatives from every part of it, will usually be a sufficient guide. Every State already has, and will continue to have, regulations on this matter, which in many cases will leave the federal legislature with little more to do than review various State laws and combine them in one general act. An able person, working privately with all the local codes before him, could compile a law about certain kinds of taxes for the entire Union without any need for oral testimony. Whenever internal taxes become necessary—especially for matters needing uniformity among the States—it can be expected that the simpler objects will be chosen. To appreciate how much easier this makes the federal legislature’s task, thanks to State codes, just imagine for a moment that this or any other State was divided into regions, each with its own local legislative power. It’s clear that a great deal of local information and preparatory work would be found in the records of their proceedings, making the job of the general legislature much shorter and allowing a smaller number of members to suffice. The federal councils will also benefit from another factor: each State’s representatives will bring with them a good knowledge of its laws and local information from their home districts; often, they will likely have served in, or even still serve in, the State legislature, where all the State’s local details and interests are discussed, allowing this information to be easily brought into the federal legislature by just a few individuals.

(The observations about taxation apply even more strongly to the case of the militia. While rules of discipline may differ between States, within each State the rules are the same, and rely on conditions that vary little across different areas of the same State.) (E1)

(Regarding the regulation of the militia, there are hardly any situations where local knowledge is really necessary. The general terrain—whether mountainous or flat and more suited to infantry or cavalry—may be the only such factor. The art of war teaches general principles of organization, movement, and discipline that apply in all places.) (E1)

Attentive readers will notice that the reasoning here, used to argue that a moderate number of representatives is sufficient, does not contradict what was previously said about the extensive information representatives should have and the time required to gain it. That information—for local matters—is only necessary and difficult because of differences in laws and local conditions between different States, not within a single State. If you look at each State individually, its laws are consistent, and its interests hardly vary. A few people, therefore, can possess all the knowledge needed to properly represent that State. If the interests and affairs of each State were perfectly simple and uniform, knowing one part would mean knowing them all, and just one member from any area could adequately represent the whole State. When we compare different States, though, there are clearly big differences in laws and other factors related to federal legislation, all of which federal representatives should at least be acquainted with. So, while a small number of representatives from each State may know their own State well, every representative must learn much about all the others. As previously mentioned, over time the relative situations of the different States will tend to become more similar, but within each State, matters may become more diverse. Right now, some States are barely more than farming communities. Few have advanced far in industries that add variety and complexity to a nation’s affairs. Still, as populations grow, every State will experience this, and will need, in turn, greater representation. The convention wisely ensured that as population increases, so too can the size of the representative branch of government.

Great Britain’s experience, which offers the world so many political lessons—some cautionary, some exemplary—and which has often been referenced here, supports what I have just argued. The population of England and Scotland cannot be counted at less than eight million. The House of Commons contains 558 representatives for this group. Of these, one ninth are elected by just 364 people, and half by only 5,723 people.(1) It is unreasonable to assume that this half—the ones who do not even live among the general population—can contribute meaningfully to the people’s security from the government, or to a real understanding of their situation and interests. In fact, it is well known that these individuals usually serve the executive branch more than they act as guardians and advocates of popular rights. These could properly be counted as more than simply a reduction from the number of real representatives. However, we will only see them this way and will not include many others who also do not live among their constituents, have little connection with them, and scant knowledge of their particular affairs. Even with these generous concessions, only 279 people truly hold the safety, welfare, and happiness of eight million—in other words, each representative is responsible for defending the rights and presenting the needs of TWENTY-EIGHT THOUSAND SIX HUNDRED AND SEVENTY individuals, all while exposed to strong executive influence and tasked with every subject of legislation for a country whose situation is highly diverse and complex. Yet, it is certain that a significant portion of freedom has persisted under these circumstances, and that the shortcomings in the British system are rarely due to lawmakers’ ignorance of the people's circumstances. Given this, and when compared to the proposed House of Representatives as I have just described, it offers strong assurance that a representative for every THIRTY THOUSAND INHABITANTS will make the new House both a safe and capable guardian of the interests entrusted to it.

PUBLIUS

1. Burgh’s “Political Disquisitions.”

E1. Two versions of this paragraph appear in different editions.

## FEDERALIST No. 57. The Alleged Tendency of the New Plan to Elevate the Few at the Expense of the Many Considered in Connection with Representation.

### From the New York Packet. Tuesday, February 19, 1788.

MADISON

To the People of the State of New York:

THE THIRD charge against the House of Representatives is that it will be drawn from a class of citizens with the least sympathy for the majority of the people and will be most likely to sacrifice the many for the advantage of the few.

Of all the objections made against the federal Constitution, this might be the most extraordinary. While this accusation targets an alleged oligarchy, its underlying principle actually challenges the very foundation of republican government.

The objective of every political constitution should first be to select as rulers the people who possess the most wisdom to recognize, and the most virtue to pursue, the common good of society; and, second, to establish the most effective safeguards to ensure that these rulers remain virtuous while holding public trust. The method of electing rulers is the hallmark of republican government. This form of government uses various methods to prevent corruption, but the most effective is limiting the length of public appointments to maintain proper accountability to the people.

Now, let me ask: what aspect of the House of Representatives’ structure violates the principles of republican government or encourages the elevation of the few over the many? In fact, isn't every aspect of its construction aligned with those principles and impartial to the rights and aspirations of every group and class of citizens?

Who are to be the electors of the federal representatives? Not just the rich rather than the poor; not just the learned rather than the ignorant; not the privileged heirs of famous names rather than the ordinary sons of hardship and ill fortune. The electors are the great body of the American people. They are the same people who have the right, in each State, to choose the equivalent branch of the State legislature.

Who are to be eligible for popular selection? Every citizen whose merit earns the respect and confidence of the country. No requirement of wealth, birth, religious belief, or civil occupation is permitted to restrict the people’s judgment or prevent them from choosing as they wish.

If we consider the situation of those whom free suffrage might entrust with the representative role, we find every conceivable security for their faithfulness to their constituents.

First, since they have been preferred by their fellow citizens, it is reasonable to suppose they possess, in general, the qualities that made this possible—qualities that suggest a sincere and conscientious commitment to their duties.

Second, they will enter public service in circumstances that cannot fail to inspire, at least temporarily, some affection for their constituents. Everyone feels gratitude for marks of honor, favor, esteem, and confidence—a feeling that, even apart from self-interest, offers some guarantee of grateful and benevolent conduct in return. Ingratitude is a frequent complaint against human nature—and, admittedly, glaring examples can be found in both public and private life. Still, the widespread and intense anger it arouses is itself evidence of the strength and prevalence of the opposite sentiment.

Third, the bonds tying representatives to their constituents are strengthened by more self-interested motives. Their pride and vanity attach them to a government that supports their ambitions and grants them a share of honors and distinction. While some ambitious individuals might hope for more, it will generally be the case that most who owe their positions to popular support have more to gain by preserving public favor than by proposing government changes that undermine popular authority.

However, all these safeguards would be inadequate without frequent elections. Hence, fourth, the House of Representatives is so structured as to continually remind its members of their dependence on the people. Before the experience of power can erase from their minds the impressions made by their election, they will have to anticipate the end of their power, the moment it will be reviewed, and when they must fall back to the citizen level from which they rose—where they will remain unless their faithful fulfillment of duty secures them a renewed mandate.

I add, as a fifth factor limiting the House of Representatives from oppressive actions, that they cannot pass any law that does not fully apply to themselves and their friends as well as to the general public. This has always been regarded as one of the strongest ties uniting rulers and the people. It creates a shared interest and sentiment rarely seen in governments, but without it, every government slides into tyranny. If it’s asked what prevents the House from making legal exceptions for themselves or a particular class, I answer: the spirit of the system; the requirements of just and constitutional law; and, above all, the vigilant and robust character of the American people—a spirit that sustains liberty and is in turn sustained by it.

If this spirit is ever degraded enough to tolerate a law that doesn’t bind the legislature as well as the people, then the people will be ready to tolerate anything except liberty.

This will be the relationship between the House of Representatives and their constituents. Duty, gratitude, self-interest, even ambition—all tie them to fidelity and sympathy with the public. These may all be insufficient to restrain human caprice or wickedness, but aren’t they the only restraints that government allows and human wisdom can create? Aren’t these the real and defining safeguards by which republican government seeks to protect the people’s freedom and happiness? Aren’t these the same measures that every State government relies on to achieve these vital goals? So, what are we to make of the objection addressed here? What do we say to those who profess the strongest zeal for republican government, yet openly attack its fundamental principle; who pose as champions of the right and ability of the people to pick their own rulers, yet claim that the people will always choose those who will immediately and inevitably betray their trust?

If someone unfamiliar with the Constitution’s method for choosing representatives read this objection, he might imagine that an unreasonable property requirement was attached to voting rights, or eligibility for office was limited to certain families or wealth, or, at least, that the method prescribed by State constitutions had been grossly departed from. We have seen how wrong this would be concerning the first two points. Nor would it be less wrong regarding the last. The only real difference is that each representative of the United States will be elected by five or six thousand citizens, while, in the States, a representative is chosen by roughly five or six hundred. Is it reasonable to argue that this difference is a good reason to prefer State governments and reject the federal government? If this is the real objection, let’s examine it.

Is it supported by REASON? Not unless we also say that five or six thousand citizens are less capable of selecting a good representative, or more likely to be corrupted by a bad one, than five or six hundred. Reason, on the contrary, tells us that the larger the number, the more likely a good representative will be chosen, and the less likely the choice can be corrupted by ambitious manipulation or the bribes of the wealthy.

Is the CONSEQUENCE of this argument acceptable? If we claim that five or six hundred voters is the maximum practical number to exercise the right to vote, then must we not deprive the people of direct choice of their officials wherever government administration does not require one official for every such group of citizens?

Is the argument backed by FACTS? The previous paper showed that the real representation in the British House of Commons is about one for every thirty thousand inhabitants. Besides several powerful causes present there supporting rank and wealth, and not present here, no one can be a county representative unless he owns real estate worth six hundred pounds sterling a year; for cities or boroughs, the qualification is half that amount. Additionally, the county electors must own a freehold with an annual value over twenty pounds sterling. Despite these barriers, and despite some very unequal British laws, it cannot be said that their representatives have raised the few above the many.

But we don’t need foreign examples. Our own experiences are clear and conclusive. In New Hampshire, the districts where senators are chosen directly by the people are almost as large as those that’ll be needed for congressional representatives. Massachusetts has even larger districts, and New York’s are larger still. In New York, Assembly members for major cities and counties are elected by almost as many voters as will elect a federal representative, assuming just sixty-five total members. It does not matter that, in these districts or counties, each voter casts votes for multiple representatives at once. If those same voters can choose four or five representatives at once, surely they can select just one. Pennsylvania is another example. Some of its counties that elect State representatives are nearly as large as the Congressional districts will be. The city of Philadelphia is thought to have between fifty and sixty thousand people—enough for almost two Congressional districts—yet it is just one county, where every voter votes for every State legislative representative. Perhaps more relevant here, the entire city actually elects a SINGLE member for the executive council. This is also true in all other counties of the State.

Aren’t these facts compelling evidence of the weakness of the argument against this branch of the federal government? Has it turned out that the senators of New Hampshire, Massachusetts, or New York, or the executive council of Pennsylvania, or the Assembly members in those last two States, have shown any special tendency to favor the few over the many, or are in any way less worthy than the representatives and officials chosen in other States by much smaller groups of voters?

But there are cases of a stronger nature than any I have mentioned so far. In one branch of the Connecticut legislature, each member is elected by the entire State. The same is true for the governor of Connecticut, Massachusetts, and this State, as well as the president of New Hampshire. I leave it to everyone to judge whether the outcome of any of these examples can truly justify the suspicion that a broad mode of choosing representatives leads to the elevation of traitors or threatens public liberty.

PUBLIUS

## FEDERALIST No. 58. Objection That The Number of Members Will Not Be Augmented as the Progress of Population Demands.

### Considered For the Independent Journal Wednesday, February 20, 1788.

MADISON

To the People of the State of New York:

The last criticism against the House of Representatives that I must address is based on the assumption that the number of members will not be increased as the population grows.

It has been admitted that if this objection were true, it would be very significant. However, the following points will show that, like many other objections to the Constitution, it stems either from a limited perspective or from a suspicion that distorts every issue it considers.

1. Those who make this objection seem to have forgotten that, in comparison to the State constitutions, the federal Constitution offers at least as much security that the number of representatives will increase gradually. The initial number is explicitly stated to be temporary, lasting only for the short term of three years.

Every ten years, a census will be taken. These rules clearly aim, first, to regularly adjust the number of representatives based on population, with the only exception that each State has at least one representative; and second, to increase the overall number of representatives at those same intervals, subject only to the limit of one representative for every thirty thousand inhabitants. If we look at the constitutions of the various States, we will find that some have no clear rules on this, others are similar to the federal Constitution, and even the best rules among them are essentially only advisory.

2. As far as past experience goes, the number of representatives in State legislatures has increased at least as quickly as the population has grown, and representatives have generally been just as willing to take such steps as the people have been eager to demand them.

3. There is a unique feature of the federal Constitution that guarantees both the people and their representatives will keep a close watch on increasing the number of representatives as needed. The uniqueness is that one branch of the legislature represents the people, while the other represents the States: in the former, the larger States will have more power; in the latter, the smaller States receive the advantage. Because of this, we can be sure the larger States will push hard for increasing the size and influence of the legislative branch where they hold sway. And, as it happens, just four of the largest States will have a majority of votes in the House of Representatives. So, if the smaller States or their people ever oppose a reasonable increase in the number of members, a coalition of just a few States could overcome that opposition; such a coalition, though local rivalries might prevent it on minor issues, would certainly form when supported by shared interests and guided by fairness and the Constitution's principles.

It might be argued that the Senate would be equally motivated to form an opposing alliance, and since Senate agreement is essential, the proper and constitutional aims of the other branch could be blocked. This is likely the most serious worry for those who support a larger representation. Fortunately, this is one of those concerns that disappears on closer examination. The following reflections should, I believe, be seen as convincing on this point.

Even though both houses have equal authority on all legislation except for starting money bills, it is clear that the House—with more members, backed by the larger States, and expressing the clear will of the majority—will have a major advantage on any issue that tests the resolve of the two houses.

This advantage grows since that side will be confident they are right under the law, by reason, and according to the Constitution—while the other side knows it is opposing these powerful arguments.

Also, among the spectrum of States from smallest to largest, there are some that, though tending to side with the smaller States, are not so much smaller in size and population as to ignore the fair claims of the larger States. So, it's by no means certain that a Senate majority would ever oppose justified increases in the number of representatives.

It is reasonable to add that senators from all the new States might be persuaded to support the House’s fair position, for a reason too obvious to miss. These new States, for quite some time, will grow rapidly in population, and so will be eager for regular reapportionment of representatives. The large States, therefore, who dominate the House, only need to make reapportionment and increases conditional on each other; senators from the fastest-growing States will be compelled by their State’s interests to support ongoing increases.

These points provide solid security on this matter, and should be enough to resolve any doubts and concerns. But even if they were not enough to counteract unfair policies of the smaller States or their outsized influence in the Senate, the larger States would still have a reliable and constitutional way to achieve their goals. The House of Representatives not only can refuse but holds the sole right to propose the funds needed to run the government. In short, they control the purse—a powerful tool that, as seen in British history, allowed a once-small and humble body to expand its power, and, as much as it wanted, to reduce the privileges of other branches. This control of the purse is the strongest and most effective means any constitution can grant to the people’s direct representatives, both for addressing grievances and for carrying out good and necessary measures.

But won’t the House of Representatives be just as interested as the Senate in keeping the government running properly—and wouldn’t that make them hesitant to risk its existence or reputation on pressuring the Senate? Or, if a test of strength between the branches occurred, wouldn’t both sides have an equal chance of giving in first? These questions pose no real problem for those who understand that the smaller the group, and the more permanent and visible the office, the greater each person’s interest in government affairs. Those who represent the nation's dignity to the world will be especially sensitive to dangers—or to dishonor and stalemate. That is why the British House of Commons has so often prevailed over the other branches of government, especially when using money bills. Even though absolute resistance by the other branches would have caused general chaos, such inflexibility has never really been seen or feared. The greatest firmness the federal Senate or President could show would only match a level of resistance they could support with constitutional and patriotic motives.

In reviewing the design of the House of Representatives, I have not discussed the issue of economy, which might have led, given present circumstances, to a smaller number of representatives now—and a lack of frugality would probably attract as much criticism as the current small number does. I am also not discussing the current challenge of recruiting enough qualified people as representatives. But I must make one observation that demands careful attention. In every legislative assembly, the larger the number of members, the fewer people actually guide its actions. First, the more numerous any group is, regardless of character, the more likely passion will overrule reason. Next, a larger group means a higher proportion of members with limited knowledge or ability. It is those people whom the speeches and persuasion of a few can most strongly influence. In the ancient republics, where the whole populace met in person, a single speaker or cunning statesman often ruled as surely as if he alone held the scepter. The same is true of large representative bodies: the more their numbers grow, the more they suffer the weaknesses of public assemblies. Ignorance will fall for trickery, and passion will become the tool of smooth-talking orators. The people are most mistaken if they think increasing the number of their representatives indefinitely will protect them from rule by a few. Experience will always teach them that, BEYOND ENSURING ENOUGH REPRESENTATIVES FOR SAFETY, LOCAL KNOWLEDGE, AND CONNECTION TO ALL PARTS OF SOCIETY, every further addition works against their own objective. The government may seem more democratic, but its leadership will become more oligarchic. The structure will be larger, but the number—and often the secrecy—of those who truly direct it will increase.

As connected with the objection to the number of representatives, it is appropriate here to address the criticism regarding the number required to conduct legislative business. It has been suggested that more than a simple majority should have been required for a quorum; and, in certain cases—if not all—more than a majority of those present should have been necessary for decisions. There is no denying that such a precaution might have brought some benefits. It could have provided additional protection for certain interests and generally acted as a further barrier against rash or partial measures. However, these considerations are outweighed by the disadvantages. In all cases where justice or the public good calls for new laws or decisive action, the fundamental principle of free government would be overturned. It would no longer be the majority in control; instead, power would shift to the minority. If this defensive privilege were allowed in certain instances, a self-interested minority might use it to avoid making fair sacrifices for the common good or, in critical situations, to demand unreasonable concessions. Furthermore, it would encourage and reinforce the harmful practice of secessions—a practice already seen in States where only a majority is required; a practice that undermines the principles of order and good government; and one that leads more directly to public unrest and the downfall of popular governments than any other we have yet witnessed.

PUBLIUS

## FEDERALIST No. 59. Concerning the Power of Congress to Regulate the Election of Members

### From the New York Packet. Friday, February 22, 1788.

HAMILTON

To the People of the State of New York:

The logical sequence of topics leads us next to consider the provision in the Constitution that authorizes the national legislature to regulate, as a last resort, the election of its own members. The provision reads: “The TIMES, PLACES, and MANNER of holding elections for senators and representatives shall be prescribed in each State by the legislature thereof; but the Congress may, at any time, by law, make or alter SUCH REGULATIONS, except as to the PLACES of choosing senators.”(1) This provision has been strongly criticized not only by those who reject the Constitution as a whole, but also by people who object with less severity and greater moderation; and, in one particular instance, even by a gentleman who supports every other part of the system.

Nonetheless, I am convinced that there is no article in the entire plan more defensible than this one. Its merit lies in this basic proposition: EVERY GOVERNMENT OUGHT TO CONTAIN IN ITSELF THE MEANS OF ITS OWN PRESERVATION. Every fair-minded person will, at first glance, approve of following this principle in the convention’s work and will reject any departure from it unless compelled by the necessity to include an element in the system that fundamentally conflicts with this rule. Even then, while he may accept the necessity, he will still view any departure from such a basic principle as an imperfection in the system, possibly sowing seeds of future weakness or even anarchy.

No one will claim that an election law could have been designed and embedded in the Constitution that would always suit every likely change in the country’s conditions; and so, it follows that somewhere, there must be a discretionary power over elections. I presume it will be readily agreed there were only three logical ways to assign this power: it could be placed entirely with the national legislature, entirely with the State legislatures, or primarily with the latter but ultimately with the former. The convention, wisely, chose the last approach. They gave the regulation of federal elections, in the first instance, to the local administrations; this is usually more convenient and acceptable—provided no improper motives influence the process. But they reserved to the national government the authority to intervene if exceptional circumstances require it for national safety.

It is obvious that giving State legislatures exclusive control over national elections would put the Union’s existence entirely at their mercy. They could at any time destroy it by failing to arrange for the election of officials to run its affairs. It is not convincing to argue that such neglect or omission is unlikely to occur. The mere constitutional possibility, without any corresponding safeguard, is an irrefutable objection. No one has yet offered a good reason to accept this risk. Suspicions based on exaggerated fears have no merit. If we are willing to assume abuses of power, we should recognize that State governments are just as likely to abuse power as the general government. And, if we must risk abuse, it makes more sense, according to sound theory, to trust the Union with protecting its own existence rather than handing that responsibility to others. If power must be risked, let it be where it naturally belongs, not where it does not.

Imagine if the Constitution contained a provision giving the United States power to regulate the elections for the individual States; no one would hesitate to condemn it as an unjustified shift of authority and as a planned tool to destroy State governments. The breach of principle in that case would be plain; an unbiased observer would see it just as clearly in making the existence of the national government dependent, in this way, on the will of the State governments. A fair look at the matter must lead to the conclusion that each government, whenever possible, should have the primary responsibility for its own preservation.

It may be argued against this position that the Constitution’s approach to the national Senate already exposes the Union to the same risk that would result from giving State legislatures exclusive control over federal elections. One could argue that, by refusing to appoint Senators, the State legislatures could at any time cripple the Union; and from this, infer that since they already hold this power in one vital area, there is no harm in letting them have it elsewhere. Besides, the interest of each State in maintaining its representation in Congress would, it is said, be sufficient to prevent such abuse.

While this argument may sound persuasive, it does not withstand scrutiny. It is true that State legislatures, by refusing to appoint senators, could destroy the national government. But it does not follow that, because they have this power in one instance, they should have it in every instance. Some situations would make the danger of this power much greater, without giving the same justifying reason as that which caused the system to assign the Senate’s formation as it did. To the extent that arrangement opens the Union to potential injury from State legislatures, it is a flaw; but one that could not have been avoided without completely excluding the States, as political entities, from participating in the national government. Had this been the case, it would surely have been seen as undermining the federal principle and would have deprived State governments of the complete safeguard they still enjoy in this structure. However wise it was to put up with an inconvenience here for a greater good, this does not justify multiplying the same risk elsewhere when no greater good calls for it.

It is also clear that the national government faces much greater risk from giving the State legislatures control over elections for the House of Representatives than it does from their power to appoint Senators. Senators are elected for six years; one-third of their seats are vacated and filled every two years; no State has more than two Senators; and a quorum consists of sixteen members. This setup means that even if a few States banded together to delay the appointment of senators, they could not abolish the Senate or halt its business; and it is only a widespread, permanent alliance of States that would pose a real danger to the Union—something we are unlikely ever to see. The first scenario could arise from ill intentions among a few State legislators; the second would indicate a deep-seated disaffection among the people at large, which either will never happen or will come from their belief that the general government cannot promote their happiness; in such a case, no good citizen would wish the government to continue.

For the federal House of Representatives, however, members are to be elected every two years. If the State legislatures had exclusive power to manage these elections, every election cycle would become a precarious moment for the nation, and if the leaders of a few major States conspired to block an election, the Union might dissolve.

I do not deny that there is some merit in the observation that each State’s interest in being represented in Congress would act as a safeguard against State abuse of election powers. However, anyone who considers the important difference between the people's interest in public happiness and their local rulers' self-interest in their positions of power, will not regard this as a complete safeguard. The people of America may be deeply committed to the national government even when the specific officials of certain States—driven by a desire for power, personal gain, and supported by strong local factions—feel otherwise. This difference of opinion between the majority and the influential members of State legislatures is evident today on this very issue. The idea of separate confederacies, which would only heighten individual ambition, will always attract those in State administrations who prioritize their own advancement over the public good. If such individuals, in the most powerful States—where the temptation will be strongest—had the exclusive power to regulate national elections, a few of them might destroy the Union by exploiting moments of popular dissatisfaction (possibly dissatisfaction they themselves have encouraged) to interrupt elections for the federal House of Representatives. We must never forget that a strong Union under efficient government will likely become an increasing source of jealousy to more than one European nation; efforts to subvert it will sometimes begin with foreign schemes and will rarely lack support from some of those foreign powers. For this reason, its survival should never, when avoidable, be entrusted to anyone except those with the greatest and most direct interest in its faithful and vigilant protection.

PUBLIUS

1. 1st clause, 4th section, of the 1st article.

## FEDERALIST No. 60. The Same Subject Continued (Concerning the Power of Congress to Regulate the Election of Members)

### From The Independent Journal. Saturday, February 23, 1788.

HAMILTON

To the People of the State of New York:

WE HAVE seen, that an uncontrollable power over the elections to the federal government could not, without hazard, be committed to the State legislatures. Let us now see, what would be the danger on the other side; that is, from confiding the ultimate right of regulating its own elections to the Union itself. It is not pretended, that this right would ever be used for the exclusion of any State from its share in the representation. The interest of all would, in this respect at least, be the security of all. But it is alleged, that it might be employed in such a manner as to promote the election of some favorite class of men in exclusion of others, by confining the places of election to particular districts, and rendering it impracticable to the citizens at large to partake in the choice. Of all chimerical suppositions, this seems to be the most chimerical. On the one hand, no rational calculation of probabilities would lead us to imagine that the disposition which a conduct so violent and extraordinary would imply, could ever find its way into the national councils; and on the other, it may be concluded with certainty, that if so improper a spirit should ever gain admittance into them, it would display itself in a form altogether different and far more decisive.

The improbability of the attempt may be satisfactorily inferred from this single reflection, that it could never be made without causing an immediate revolt of the great body of the people, headed and directed by the State governments. It is not difficult to conceive that this characteristic right of freedom may, in certain turbulent and factious seasons, be violated, in respect to a particular class of citizens, by a victorious and overbearing majority; but that so fundamental a privilege, in a country so situated and enlightened, should be invaded to the prejudice of the great mass of the people, by the deliberate policy of the government, without occasioning a popular revolution, is altogether inconceivable and incredible.

In addition to this general reflection, there are considerations of a more precise nature, which forbid all apprehension on the subject. The dissimilarity in the ingredients which will compose the national government, and still more in the manner in which they will be brought into action in its various branches, must form a powerful obstacle to a concert of views in any partial scheme of elections. There is sufficient diversity in the state of property, in the genius, manners, and habits of the people of the different parts of the Union, to occasion a material diversity of disposition in their representatives towards the different ranks and conditions in society. And though an intimate intercourse under the same government will promote a gradual assimilation in some of these respects, yet there are causes, as well physical as moral, which may, in a greater or less degree, permanently nourish different propensities and inclinations in this respect. But the circumstance which will be likely to have the greatest influence in the matter, will be the dissimilar modes of constituting the several component parts of the government. The House of Representatives being to be elected immediately by the people, the Senate by the State legislatures, the President by electors chosen for that purpose by the people, there would be little probability of a common interest to cement these different branches in a predilection for any particular class of electors.

As to the Senate, it is impossible that any regulation of “time and manner,” which is all that is proposed to be submitted to the national government in respect to that body, can affect the spirit which will direct the choice of its members. The collective sense of the State legislatures can never be influenced by extraneous circumstances of that sort; a consideration which alone ought to satisfy us that the discrimination apprehended would never be attempted. For what inducement could the Senate have to concur in a preference in which itself would not be included? Or to what purpose would it be established, in reference to one branch of the legislature, if it could not be extended to the other? The composition of the one would in this case counteract that of the other. And we can never suppose that it would embrace the appointments to the Senate, unless we can at the same time suppose the voluntary co-operation of the State legislatures. If we make the latter supposition, it then becomes immaterial where the power in question is placed—whether in their hands or in those of the Union.

But what is to be the object of this capricious partiality in the national councils? Is it to be exercised in a discrimination between the different departments of industry, or between the different kinds of property, or between the different degrees of property? Will it lean in favor of the landed interest, or the moneyed interest, or the mercantile interest, or the manufacturing interest? Or, to speak in the fashionable language of the adversaries to the Constitution, will it court the elevation of “the wealthy and the well-born,” to the exclusion and debasement of all the rest of the society?

If this partiality is to be exerted in favor of those who are concerned in any particular description of industry or property, I presume it will readily be admitted, that the competition for it will lie between landed men and merchants. And I scruple not to affirm, that it is infinitely less likely that either of them should gain an ascendant in the national councils, than that the one or the other of them should predominate in all the local councils. The inference will be, that a conduct tending to give an undue preference to either is much less to be dreaded from the former than from the latter.

The several States are in various degrees addicted to agriculture and commerce. In most, if not all of them, agriculture is predominant. In a few of them, however, commerce nearly divides its empire, and in most of them has a considerable share of influence. In proportion as either prevails, it will be conveyed into the national representation; and for the very reason, that this will be an emanation from a greater variety of interests, and in much more various proportions, than are to be found in any single State, it will be much less apt to espouse either of them with a decided partiality, than the representation of any single State.

In a country consisting chiefly of the cultivators of land, where the rules of an equal representation obtain, the landed interest must, upon the whole, preponderate in the government. As long as this interest prevails in most of the State legislatures, so long it must maintain a correspondent superiority in the national Senate, which will generally be a faithful copy of the majorities of those assemblies. It cannot therefore be presumed, that a sacrifice of the landed to the mercantile class will ever be a favorite object of this branch of the federal legislature. In applying thus particularly to the Senate a general observation suggested by the situation of the country, I am governed by the consideration, that the credulous votaries of State power cannot, upon their own principles, suspect, that the State legislatures would be warped from their duty by any external influence. But in reality the same situation must have the same effect, in the primitive composition at least of the federal House of Representatives: an improper bias towards the mercantile class is as little to be expected from this quarter as from the other.

In order, perhaps, to give countenance to the objection at any rate, it may be asked, is there not danger of an opposite bias in the national government, which may dispose it to endeavor to secure a monopoly of the federal administration to the landed class? As there is little likelihood that the supposition of such a bias will have any terrors for those who would be immediately injured by it, a labored answer to this question will be dispensed with. It will be sufficient to remark, first, that for the reasons elsewhere assigned, it is less likely that any decided partiality should prevail in the councils of the Union than in those of any of its members. Secondly, that there would be no temptation to violate the Constitution in favor of the landed class, because that class would, in the natural course of things, enjoy as great a preponderancy as itself could desire. And thirdly, that men accustomed to investigate the sources of public prosperity upon a large scale, must be too well convinced of the utility of commerce, to be inclined to inflict upon it so deep a wound as would result from the entire exclusion of those who would best understand its interest from a share in the management of them. The importance of commerce, in the view of revenue alone, must effectually guard it against the enmity of a body which would be continually importuned in its favor, by the urgent calls of public necessity.

I the rather consult brevity in discussing the probability of a preference founded upon a discrimination between the different kinds of industry and property, because, as far as I understand the meaning of the objectors, they contemplate a discrimination of another kind. They appear to have in view, as the objects of the preference with which they endeavor to alarm us, those whom they designate by the description of “the wealthy and the well-born.” These, it seems, are to be exalted to an odious pre-eminence over the rest of their fellow-citizens. At one time, however, their elevation is to be a necessary consequence of the smallness of the representative body; at another time it is to be effected by depriving the people at large of the opportunity of exercising their right of suffrage in the choice of that body.

But upon what principle is the discrimination of the places of election to be made, in order to answer the purpose of the meditated preference? Are “the wealthy and the well-born,” as they are called, confined to particular spots in the several States? Have they, by some miraculous instinct or foresight, set apart in each of them a common place of residence? Are they only to be met with in the towns or cities? Or are they, on the contrary, scattered over the face of the country as avarice or chance may have happened to cast their own lot or that of their predecessors? If the latter is the case, (as every intelligent man knows it to be,(1)) is it not evident that the policy of confining the places of election to particular districts would be as subversive of its own aim as it would be exceptionable on every other account? The truth is, that there is no method of securing to the rich the preference apprehended, but by prescribing qualifications of property either for those who may elect or be elected. But this forms no part of the power to be conferred upon the national government. Its authority would be expressly restricted to the regulation of the TIMES, the PLACES, the MANNER of elections. The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature.

Let it, however, be admitted, for argument sake, that the expedient suggested might be successful; and let it at the same time be equally taken for granted that all the scruples which a sense of duty or an apprehension of the danger of the experiment might inspire, were overcome in the breasts of the national rulers, still I imagine it will hardly be pretended that they could ever hope to carry such an enterprise into execution without the aid of a military force sufficient to subdue the resistance of the great body of the people. The improbability of the existence of a force equal to that object has been discussed and demonstrated in different parts of these papers; but that the futility of the objection under consideration may appear in the strongest light, it shall be conceded for a moment that such a force might exist, and the national government shall be supposed to be in the actual possession of it. What will be the conclusion? With a disposition to invade the essential rights of the community, and with the means of gratifying that disposition, is it presumable that the persons who were actuated by it would amuse themselves in the ridiculous task of fabricating election laws for securing a preference to a favorite class of men? Would they not be likely to prefer a conduct better adapted to their own immediate aggrandizement? Would they not rather boldly resolve to perpetuate themselves in office by one decisive act of usurpation, than to trust to precarious expedients which, in spite of all the precautions that might accompany them, might terminate in the dismission, disgrace, and ruin of their authors? Would they not fear that citizens, not less tenacious than conscious of their rights, would flock from the remote extremes of their respective States to the places of election, to overthrow their tyrants, and to substitute men who would be disposed to avenge the violated majesty of the people?

PUBLIUS

1. Particularly in the Southern States and in this State.

## FEDERALIST No. 61. The Same Subject Continued (Concerning the Power of Congress to Regulate the Election of Members)

### From the New York Packet. Tuesday, February 26, 1788.

HAMILTON

To the People of the State of New York:

The more honest critics of the provision concerning elections in the convention’s plan, when pressed in debate, will occasionally admit the merit of that provision—but with a qualification: they say it should have included a declaration that all elections must take place in the counties where the voters reside. They argue this would be a necessary safeguard against abuse of power. Such a declaration would indeed have been harmless; to the extent that it would have quieted fears, it might even have been desirable. In reality, however, it would have provided little or no extra protection against the perceived danger, and its absence should not, for any impartial and thoughtful examiner, be considered a serious—let alone an insurmountable—objection to the plan. The varied considerations discussed in the two previous essays should be enough to satisfy all objective and perceptive individuals that, if public liberty is ever threatened by the ambitions of national leaders, the power under discussion will at least be innocent of facilitating that harm.

If those who are prone to jealousy would only turn that vigilance to a careful examination of the various State constitutions, they would find almost as much reason for concern over the latitude those documents grant regarding elections as they would over the latitude proposed for the national government. A review of their situation on this point would greatly help dispel any lingering negative impressions. Yet, since such analysis would require lengthy and tedious detail, I will focus on a single example: the State in which I am writing. The constitution of New York offers no other guidance for the LOCATION of elections than that members of the Assembly are elected within their respective COUNTIES, and members of the Senate within the large districts into which the State is or may be divided. These districts, currently four in number, each include from two to six counties. Clearly, it would be no harder for the New York legislature to suppress the voices of its citizens by restricting elections to certain locations than it would be for the legislature of the United States to do so across the Union. For example, if the city of Albany were designated as the only polling place for the entire county and district, would not its residents soon become the sole electors for both the Senate and Assembly representing that area? Is it reasonable to believe that voters from the remote areas of Albany, Saratoga, Cambridge, and similar places, or from any part of Montgomery County, would be more likely to travel to Albany to cast their votes for state office than to the city of New York to help choose members for the federal House of Representatives? The concerning lack of turnout for such an essential right, even under current laws that make voting convenient, answers this question plainly. Aside from practical experience, it is obvious that if a polling place is located at an INCONVENIENT DISTANCE, the effect will be the same for the voter whether that distance is twenty miles or twenty thousand. Thus, any objections to the specific structure of federal election regulation apply equally forcefully to New York’s constitution; for this reason, one cannot justify criticizing the federal approach while excusing the State one. Similar comparisons would reach the same conclusion regarding most other State constitutions.

If it is argued that flaws in State constitutions do not excuse similar flaws in the proposed plan, I answer this: since State constitutions have not typically been charged with neglecting liberty, and since the criticisms aimed at the federal plan also apply to the States, the likely explanation is that such criticisms are more the quibbles of determined opposition than the well-founded conclusions of a neutral search for truth. Those who consider these as mere overlooked details in State constitutions but as unforgivable faults in the convention’s plan cannot be convinced—unless they can present substantial reasons why the representatives in any single State would be more immune to the temptations of power, or to other improper motives, than the representatives of the United States as a whole. If they cannot, they should at least explain how it would be easier to undermine the liberty of three million people, supported by their local governments, than two hundred thousand who lack that advantage. And, with regard to the immediate issue, they must show why it is less likely for a dominant faction in a single State to seek an electoral advantage for a preferred group than for a similar faction to influence representatives from thirteen States, which differ so greatly in their local conditions, interests, and prejudices.

Until now, my comments have been focused on defending the provision in question on the grounds of theoretical appropriateness, the dangers of assigning this power elsewhere, and the safety of assigning it as proposed. However, there is a further positive benefit of this arrangement that could not as easily be gained by any other means: uniformity in the timing of elections for the federal House of Representatives. Experience may show that such uniformity is vitally important to the public good, serving both as protection against the continued dominance of any one spirit within the House, and as a remedy for partisan faction. If each State sets its own election date, there could be as many different election periods as there are months in the year. Currently, election times for local purposes differ widely, ranging from March to November. This diversity would mean there could never be a complete turnover or renewal of the body at any single moment. Should any unfortunate sentiment take hold in the House, it would likely influence new members as they join. The main body would remain largely unchanged, continually shaping its new additions in its own image. There is a contagious power in example that few can resist. I believe that even if members served three times longer, provided the entire chamber turned over at once, it might be less threatening to liberty than making a third of the chamber subject to gradual, rolling changes.

Uniform election timing is no less necessary for maintaining a routine rotation in the Senate and for conveniently assembling the legislature at a set time each year.

It may be asked: why, then, was a fixed time not specified in the Constitution? As the fiercest critics of the convention’s plan in this State also tend to be ardent supporters of the State constitution, it is fair to turn the question back: why was no such fixed time specified in the State constitution for similar purposes? The best answer is that it was rightly left to legislative discretion; and, if a specific time had been fixed, experience could have shown that another time might have worked better. The same answer applies to both questions. Further, since the only danger imagined from gradual change is speculative, it would hardly be wise, based solely on such speculation, to make a fundamental rule that would deprive some States of the convenience of holding elections for both their own and the national government at the same times.

PUBLIUS

## FEDERALIST No. 62. The Senate

### For the Independent Journal. Wednesday, February 27, 1788

MADISON

To the People of the State of New York:

Having examined the structure of the House of Representatives, and addressed those objections that seemed worth considering, I now turn to the Senate. The main topics to discuss with respect to this branch are: I. The qualifications required of senators; II. Their appointment by State legislatures; III. The principal of equal representation in the Senate; IV. The number of senators and the length of their terms; V. The powers vested in the Senate.

I. The proposed qualifications for senators, in contrast with those for representatives, involve a higher minimum age and a longer citizenship requirement. A senator must be at least thirty years old, while a representative needs only to be twenty-five. The senator must also have been a citizen for nine years, compared to seven for a representative. The logic behind these differences lies in the nature of the Senate’s responsibilities, which require a greater depth of knowledge and a more established character—attributes more likely found at a later stage of life. Moreover, since senators deal directly in foreign affairs, they ought to be individuals who are thoroughly acclimated to American ways, free from foreign prejudices and habits. The nine-year requirement is a balanced compromise between totally excluding deserving naturalized citizens and opening the door too widely and quickly, which could encourage undue foreign influence in national councils.

II. It is likewise unnecessary to go into detail about the appointment of senators by State legislatures. Among the many possible ways of composing this branch, the method proposed by the convention is probably most in line with public opinion. It has the dual merit of encouraging thoughtful selections and giving State governments a direct role in forming the federal government, thereby preserving their authority and creating a vital connection between the two systems.

III. Equal representation of the States in the Senate is an issue that, being obviously a compromise between the conflicting claims of large and small States, does not require extensive debate. If it is fair, in a fully unified nation, for every district to have a proportionate voice in government, and fair, in a confederation of independent and sovereign States, for all participants—no matter their size—to have an equal voice, then it seems reasonable that, in a mixed republic partaking of both types, the government would blend both ideas: proportional and equal representation. But since this part of the Constitution is acknowledged to be a product not of theory but “of a spirit of harmony and the mutual deference and compromise our situation required,” there is little point in judging it by theoretical standards. America’s circumstances call for a common government with effective powers; a system that aligns more closely with the interests of the larger States would be unattainable from the smaller States. The only alternative for the large States, then, is between accepting the proposed system or settling for something worse. Prudence thus argues for choosing the lesser evil, focusing on the likely benefits rather than on possible disadvantages.

In this spirit, it’s worth noting that the equal vote per State both recognizes the surviving sovereignty of individual States and serves as a key instrument for preserving it. In this respect, the arrangement should be at least as acceptable to large States as to small, since both have a strong interest in preventing excessive centralization into a single republic.

Another advantage of this Senate design is the extra barrier it creates to rash or improper legislative acts. No law or resolution can now pass without a majority of the people’s representatives and a majority of the States concurring. Admittedly, this extra layer of approval may sometimes be as inconvenient as it is helpful; and the specific protection it gives the small States would make more sense only if those States faced dangers peculiar to them. However, since the large States will always be able to use their control over financial matters to counterany unreasonable use of this privilege by the small States—and excessive or ill-considered lawmaking is an especially common danger in our governments—this feature of the Constitution may prove more useful in practice than some expect.

IV. We now turn to the number of senators and length of their terms. To judge these points clearly, we must consider why a senate is necessary in the first place, and to do that, we should look at the problems a republic suffers in the absence of such an institution.

First, it is a recurring flaw of republican government—though less so than in others—that those entrusted with public power may forget their obligation to their constituents and fail in their duty. In this respect, a senate—serving as a second legislative branch, distinct from and able to check the first—provides vital additional security. It doubles the protection for the people, because any attempt at misconduct or betrayal would require the cooperation of two separate bodies, rather than just one. This is a basic precaution, now well understood in the United States, that requires no lengthy explanation. I will simply note that the less alike the two chambers are in their character, the less likely it is they will join in wrongdoing; so it is wise to distinguish them in every way compatible with harmony and the true spirit of republican government.

Second, a senate is also necessary because all single, large assemblies tend to be swayed by sudden or violent emotions, and may be led by factions into rash and harmful decisions. History—both within the United States and abroad—offers countless examples. This point is so widely accepted it needs no proof. All that need be said is that a body serving as a check on such failings ought itself to be stable and composed of fewer members—and ought to have enough firmness, based on a substantial term of office, to resist such impulses.

Third. Another defect that a senate needs to fix is a lack of sufficient knowledge about the objects and principles of legislation. It is unrealistic to expect that a group of men, mostly drawn from private life, appointed for only a short period, and not motivated by any ongoing incentive to spend their free time studying laws, public affairs, and the broad interests of their country, could, if left entirely to themselves, avoid many serious mistakes in exercising their legislative responsibilities. It can be fairly argued that much of America's current difficulties come from mistakes made by our governments; and that these have come more from errors in judgment than from any lack of good intentions by their creators. In fact, what are all the repealing, clarifying, and amending laws that fill and tarnish our lengthy codes but visible proofs of insufficient wisdom—countless indictments made by each session against the one before it—constant reminders to the public of the value of the support that may come from a well-structured senate?

A sound government requires two things: first, loyalty to the purpose of government, which is the happiness of the people; and second, an understanding of how that goal can best be achieved. Some governments lack both; most lack the first. I do not hesitate to claim that in American governments, too little attention has been paid to the second. The federal Constitution avoids this error; and notably, it addresses the second point in a way that also improves the security of the first.

Fourth. The frequent changes in the public councils that result from a rapid turnover of new members, no matter how qualified they may be, strongly show the need for a stable institution within the government. Every new election in the States tends to replace half of the representatives. This turnover leads to new opinions and, from new opinions, new policies. But constant change—even of good policies—contradicts every principle of prudence and every hope of success. This is true in private life, and is even more accurate and important in national affairs.

To fully describe the harmful effects of an unstable government would require a whole book. I will mention only a few, each of which leads to countless others.

First, it undermines the respect and trust of other nations, along with all the benefits that go with a good national reputation. An individual who is known to be inconsistent or who acts without any clear plan is, by all sensible people, quickly judged as someone destined to suffer for his own lack of steadiness and judgment. His friendlier neighbors may feel sorry for him, but everyone will avoid linking their fortunes to his; and some will even take advantage of him. One nation is to another what one individual is to another—with the unfortunate difference that nations, with fewer kind feelings than individuals, feel even less compelled to avoid exploiting one another's mistakes. Therefore, any nation whose affairs reveal a lack of wisdom and stability can expect to suffer every possible loss at the hands of smarter, more organized neighbors. The most vivid warning on this comes from America’s own experience. She finds herself disrespected by friends, mocked by enemies, and exploited by every nation interested in taking advantage of her unstable policies and chaotic condition.

The internal effects of changeable policies are even worse. It undermines the benefits of liberty itself. It will be of little use to the people that their laws are made by representatives they have chosen, if those laws are so numerous that they can’t be read, or so inconsistent that they can’t be understood; if they are repealed or changed before being announced, or if they change so often that no one, who knows the law today, can tell what it will be tomorrow. Law is supposed to be a rule of action; but how can it serve as a rule if it is barely known and even less certain?

Another result of shifting public policy is the unfair advantage it provides to the clever, the ambitious, and the wealthy few over the hardworking and less informed majority. Every new law that affects business, trade, or property values creates new opportunities for those who are watching for change and can predict its outcomes; opportunities that come not from their own efforts, but from the work and sacrifice of the larger body of citizens. In this situation, it could fairly be said that laws are made for the FEW, not for the MANY.

In another respect, great harm comes from an unstable government. Lack of faith in public councils discourages every practical project or business venture that depends on the continuation of existing policies. What prudent merchant will risk his fortune in a new line of trade when he does not know if his plans may be outlawed before he can complete them? What farmer or manufacturer will invest in an encouraged crop or business when there’s no guarantee that his preparation and investment will not leave him worse off because of a fickle government? In short, no significant improvement or worthy project that requires a consistent national policy can go forward successfully.

But the most tragic effect of all is the loss of loyalty and respect that gradually grows in the hearts of the people toward a government that shows so many signs of weakness and fails to meet so many of their hopes. No government, any more than a person, will be respected for long unless it truly deserves respect; nor can it truly deserve respect without possessing some degree of order and stability.

PUBLIUS

## FEDERALIST No. 63. The Senate Continued

### For the Independent Journal. Saturday, March 1, 1788

MADISON

To the People of the State of New York:

A FIFTH important point, showing the value of a senate, is the need for a proper sense of national reputation. Without a select and stable branch of government, the respect of other nations will be lost—not just because of foolish or unstable policy resulting from the reasons already given, but also because the national government will lack the awareness of world opinion that is perhaps as necessary to deserve respect as it is to receive it.

For two reasons, every government should care about other nations’ opinions: first, even if a plan or policy is good in itself, it is often wise to make sure it appears to other nations as the result of wise and honorable motives; and second, in unclear cases—especially when lawmakers may be biased by strong passions or short-term interests—the assumed or well-known view of the wider world may be the best guiding influence. What has America not lost because it lacks a strong reputation with foreign countries? How many mistakes and foolish decisions could she have avoided if her actions had, each time, first been judged by how they would likely look to impartial people everywhere?

Yet, as necessary as a sense of national reputation is, it is clear that it will never truly exist in a body that is both large and constantly changing. It can only be found in a group small enough that each member feels a personal share of the credit or blame for public actions; or in an assembly whose members hold public trust long enough that their pride and sense of responsibility become truly connected with the community’s reputation and success. The semi-annual representatives of Rhode Island, for example, probably would not have cared much, when considering the unjust policies of their State, about the reputation of those actions with other nations or even with their fellow States. Yet, if the approval of a select and steady group had been needed, a concern for national reputation alone would likely have prevented the problems those people now suffer.

I add, as a SIXTH defect, that in some important cases, the government lacks sufficient accountability to the people—an accountability that, in other cases, comes from frequent elections. This idea may seem not only new, but contradictory. Yet, once explained, it must be accepted as both undeniable and important.

Accountability, to be fair, must be limited to things the responsible party can actually control, and to be effective, it must relate to actions that the people can reasonably judge. The work of government can be divided into two broad types: first, things that happen as a result of one or two direct actions; and second, things that depend on a series of well-planned and connected actions that have their effect gradually, and may go unnoticed at first. The importance of the second kind, for the long-term welfare of every country, is obvious. Still, it is clear that an assembly elected for so short a time that it can only plan for part of a much longer process on which the public good may strongly depend, should not be held responsible for the final outcome—any more than a manager or tenant, hired for just one year, could fairly be held responsible for changes or improvements that take six years to achieve. Nor can the people estimate how much influence each yearly assembly has on events that result from the combined actions of several years. It is already difficult enough to keep members of a LARGE body personally accountable for those obvious actions that directly and immediately affect the people.

The best solution for this problem is to add another body to the legislative branch, one that is permanent enough to handle those issues requiring ongoing attention and a connected sequence of actions, and one that can rightly and effectively be held accountable for accomplishing those goals.

Thus far, I have considered the reasons for a well-designed Senate mainly as they pertain to the people's representatives. To a people as free from prejudice and flattery as those I address, I will not hesitate to add that such an institution may at times be necessary as protection for the people against their own temporary mistakes and delusions. The calm and deliberate judgment of the community ought to, and in all free governments will, ultimately prevail over the intentions of its rulers. Yet there are particular moments in public life when the people, stirred by an irregular passion, or some improper advantage, or misled by the persuasive misrepresentations of interested parties, may demand actions which they themselves will soon regret and condemn. In these critical moments, how valuable would be the intervention of a reasonable and respected body of citizens to check a misguided path and delay a harmful act contemplated by the people against themselves—at least until reason, justice, and truth can reclaim their authority over public opinion? Imagine the pain the people of Athens could have avoided if their government had included such a wise safeguard against the tyranny of their own passions. Popular liberty might then have been spared the lasting shame of voting hemlock to a citizen one day and statues the next.

It might be argued that a people spread across a vast land cannot, like the inhabitants crowded into a small area, be as prone to the infection of violent passions or the danger of uniting in pursuit of unjust actions. I do not deny that this is a unique and important distinction. In fact, I have previously shown that this is one of the main advantages of a confederated republic. Still, this benefit should not be seen as a substitute for additional safeguards. It can even be noted that the same broad situation which protects the people of America from dangers common in smaller republics could also make them more vulnerable to the lasting effects of misrepresentations which the coordinated efforts of interested individuals may be able to spread among them.

Additionally, it gives considerable weight to remember that history offers us no example of a long-lived republic without a senate. Sparta, Rome, and Carthage are, in fact, the only states to which that description truly applies. In both Sparta and Rome, there was a senate for life. The details of the Carthaginian senate are less well-known, but evidence suggests it was not very different in this respect from the others. At the very least, it clearly possessed some quality that made it a stabilizing force against the swings of popular opinion; and a smaller council, selected from the senate, was appointed for life—and even filled its own vacancies. Although these examples are unsuitable for American imitation and contrary to our national character, they are, in comparison with the short and turbulent lives of other ancient republics, clear proofs of the need for an institution that combines stability with liberty. I am aware of the differences that separate American government from others, both ancient and modern, and these differences require caution when drawing lessons from foreign examples. Yet, after giving due attention to these differences, it remains true that there are many similarities that make the old examples worth our consideration. Many of the problems that only a senatorial body can fix are shared both by regularly elected large assemblies of the people and by the people themselves. There are other issues unique to the former that also require the influence of such an institution. The people, acting as a whole, would never deliberately betray their own interests, but they may be deceived or let down by their representatives; and the danger is obviously greater when the entire power of lawmaking is assigned to just one body than when separate and different bodies must all agree on public actions.

The primary distinction commonly emphasized between the American republic and others is the principle of representation. This is the core of our system and is believed to have been unknown, or at least unused, by earlier republics. My previous discussions on this topic make it clear that I recognize its significance. Therefore, I feel little hesitation in noting that the claim about ancient governments’ ignorance of representation is not entirely accurate. Without entering too deeply into what would be an inappropriate discussion here, I’ll simply refer to a few well-known facts to support my point.

Even in the purest democracies of Greece, many executive duties were carried out not by the people directly but by officials chosen by the people, who thus represented the people in executive matters.

Before Solon's reforms, Athens was ruled by nine Archons, chosen each year by the entire body of citizens. The extent of power given them remains somewhat obscure. After that period, we see an assembly, initially of four hundred, later of six hundred members, also elected annually by the people. They partly represented the people in legislative functions, since they not only joined the people in making laws, but held the exclusive right to propose new laws for consideration by the people. The Carthaginian senate, whatever its exact powers or length of service, also seems to have been chosen by popular vote. Similar cases can be found in almost all other ancient popular governments.

Finally, in Sparta, there were the Ephors, and in Rome, the Tribunes—both small bodies in size but elected each year by all the people and considered the true representatives of the people, with broad authority. The Cosmi of Crete were also chosen annually by the people, and some historians see them as institutions similar to those of Sparta and Rome, except that in Crete only a portion of the people had the right to vote for representatives.

These facts, and many others that could be listed, show that the principle of representation was not unknown to the ancients or ignored in their government systems. The real difference between them and the American system is that in America, the people as a whole have been completely excluded from direct lawmaking, while in the ancient systems the representatives of the people were not totally excluded from government. Even so, this distinction still leaves the United States with a clear advantage. However, if this advantage is to be fully effective, we must be careful not to ignore the other advantage—an extensive territory. A representative government could never have succeeded within the small boundaries of the Greek democracies.

Despite all these arguments, supported by reason, examples, and our own experiences, critics of the Constitution will probably still insist that a Senate that is not directly chosen by the people and serves for six years must gradually acquire too much power and eventually transform the government into a tyrannical aristocracy.

To that general claim, it is enough to reply that liberty can be threatened just as much by the misuse of liberty as by the misuse of power; that there are many examples of both; and that, at least in the United States, the abuses of liberty appear more likely to be a problem. Yet a more detailed answer can also be given.

For such a transformation to occur, the Senate would first have to corrupt itself, then corrupt the state legislatures, then the House of Representatives, and finally the people themselves. Obviously, the Senate must be the first to become corrupt before it could attempt such tyranny. Without also corrupting the state legislatures, it could not press its attempt, since periodic changes of members would otherwise refresh the whole body. Without being equally effective in corrupting the House of Representatives, the opposing branch would block the attempt. And unless it could corrupt the people as well, a new set of representatives would quickly restore everything to its original state. Can anyone seriously believe that the proposed Senate could, by any means possible, succeed in such a wide-ranging scheme for absolute power?

If reason refutes this suspicion, experience gives the same verdict. The Maryland constitution provides a strong example. The Maryland Senate, like the proposed federal Senate, is indirectly chosen by the people, and for a term only one year shorter than the federal Senate's. It even has the unusual power to fill its own vacancies during its term, and it is not subject to the kind of term rotation planned for the federal Senate. There are a few other minor differences that would open Maryland’s Senate to criticisms that do not apply to the federal proposal. If the federal Senate truly posed the huge risk opponents claim, the Maryland Senate ought to have shown similar dangers by now, but none have appeared. On the contrary, the fears originally raised by people similar to today’s critics of the federal plan have faded over time, as the experiment has proved to work well. In fact, this element of Maryland’s constitution is now widely admired, perhaps more so than any other state's.

If anything could quiet fears on this point, it should be the example of Britain. The British Senate, rather than being elected for six years and by a broad range of people, is a hereditary body of wealthy aristocrats. The House of Representatives is not elected every two years by all the people, but every seven years and is actually chosen by a very small portion of the people. Thus, if there were ever to be an obvious example of aristocratic dominance and tyranny, it would be found in Britain. Yet, British history tells us that this hereditary assembly has been unable to resist the steady advance of the House of Representatives, and that when it lost royal backing, it was completely overpowered by the popular branch.

Historical experience supports this reasoning even more. In Sparta, the Ephors—the people's representatives—overpowered the lifelong senate, gradually gained authority, and eventually took all the power. In Rome, the Tribunes (the people’s representatives) almost always won their disputes with the senate, ultimately gaining complete dominance. This is especially remarkable since all the Tribunes had to agree on every action, even after their number was increased to ten. It shows the irresistible power that belongs to the branch of government which truly represents the people. Carthage is another example—according to Polybius, its senate, instead of taking all power, had, by the start of the second Punic War, lost most of its original influence.

Taken together, these facts provide strong evidence that the federal Senate will never be able to transform itself, through gradual takeovers, into an independent and aristocratic body. And if such a revolution were ever to happen due to unforeseen causes, the House of Representatives—with the people on its side—could always restore the Constitution to its original form and principles. Against the power of the people’s direct representatives, nothing can maintain even the Senate's legal authority except a consistent display of wise policy and true public spirit that earns the shared support of all Americans.

PUBLIUS

## FEDERALIST No. 64. The Powers of the Senate

### From The Independent Journal. Wednesday, March 5, 1788.

JAY

To the People of the State of New York:

IT IS a fair and longstanding observation that enemies of certain people, and opponents of specific measures, rarely limit their criticism only to things truly worthy of blame. Unless this is understood, it is hard to explain the motives of those who condemn the proposed Constitution as a whole, and harshly criticize even its most unexceptionable articles.

The second section gives the President the power “BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, TO MAKE TREATIES, PROVIDED TWO THIRDS OF THE SENATORS PRESENT CONCUR.”

The power to make treaties is a significant one, especially as it relates to war, peace, and commerce. It should not be delegated except in such a manner, and with such precautions, as to ensure the highest confidence that it will be exercised by the people most qualified for the task, and in the way most beneficial to the public good. The convention seems to have paid careful attention to both of these aspects: they have arranged for the President to be selected by electors chosen specifically by the people for this purpose, and they have put the appointment of senators in the hands of the State legislatures. This method holds a great advantage over general elections by the whole people, where party enthusiasm, taking advantage of apathy, ignorance, and the hopes and fears of the unwary and interested, often puts men in office with only a small proportion of the votes.

Since the groups selecting the President and the State legislatures choosing senators will generally be made up of the most enlightened and respectable citizens, it is reasonable to assume their attention and votes will go toward men who are most distinguished for their abilities and virtue, and who have gained the trust of the people. The Constitution shows particular care in this area. By excluding men under thirty-five from the presidency and those under thirty from the Senate, it limits the field to those individuals the public has had time to judge, making it less likely that voters will be misled by fleeting displays of genius or patriotism, which, like shooting stars, sometimes dazzle but also mislead. If it is true that wise kings will always be served by able ministers, it stands to reason that a group of select electors, who have even better access to broad and accurate information about people and their character, will make choices at least as wise and discerning. The natural conclusion from these points is that the President and senators so chosen will generally be among those who best understand our national interests—both in relation to the States and foreign countries—who can best promote those interests, and whose integrity earns and deserves confidence. Such individuals can safely be trusted with the power to make treaties.

Although the absolute need for system in managing any business is universally understood and accepted, the critical importance of system in national affairs has not yet fully taken hold in the public mind. Those who wish to give this power to a popular assembly, made up of members constantly coming and going, forget that such a body must inevitably fall short when it comes to big goals that require consistent focus on all their relationships and circumstances, and that can only be approached by means which demand not just talent, but also precise information, and often a great deal of time to plan and carry out. It was wise, then, for the convention to ensure not only that the power to make treaties be entrusted to able and honest men, but also that they stay in their positions long enough to become thoroughly acquainted with national concerns and to develop and launch a system to manage them. The prescribed duration gives them the chance to greatly expand their political knowledge, making their increasing experience more and more useful to the country. The convention also wisely set up frequent elections for senators in such a way as to avoid the disruption of transferring major affairs entirely to new men at regular intervals; by keeping a significant portion of experienced members in place, they guarantee stability and continuity of official knowledge and order.

Few would deny that the affairs of trade and navigation should be regulated by a system that is carefully designed and consistently executed, and that both our treaties and laws should be made to support that system. It is important that this harmony and conformity is carefully maintained; and those who agree with this will recognize and admit it is well provided for by requiring Senate concurrence in both treaties and laws.

It rarely happens in treaty negotiations, of any kind, that perfect SECRECY and immediate SPEED are not sometimes necessary. In such cases, vital information may be gathered if those holding it can be relieved of fears about exposure. These concerns affect people whether they are motivated by self-interest or by friendliness; and there are certainly many of both types who would trust the President’s ability to keep secrets, but would not have the same faith in the Senate, and even less in a large popular Assembly. The convention, therefore, acted wisely by arranging the treaty power so that, while the President must act with the advice and consent of the Senate, he can still handle sensitive matters of intelligence as prudence requires.

Anyone who has studied human affairs must have noticed that there are tides in them—tides whose timing, strength, and direction are seldom the same twice. Recognizing and taking advantage of these tides in national matters is the job of those in charge; and experienced observers will tell us that there are often moments when days, even hours, matter greatly. A lost battle, the death of a leader, the ousting of a minister, or other unexpected events may change the entire course of events, turning favorable tides against our interests. Just as in war, so in diplomacy, there are moments to be seized; and those in charge must be able to act quickly. We have suffered so much in the past from lack of secrecy and speed that the Constitution would have been unpardonably flawed had it not addressed these needs. Usually, the details in negotiations needing most secrecy and speed are supporting measures, which aren't significant on their own except for how they aid the negotiation’s main goal. For these, the President will have no trouble making arrangements; and if a situation arises needing Senate advice and consent, he can call them together at any time. Thus, the Constitution ensures our treaty negotiations benefit from talent, knowledge, integrity, and careful study on one hand, and secrecy and speed on the other.

Like most plans proposed, this one too faces objections.

Some criticize it, not because of actual errors or shortcomings, but because, since treaties become as binding as laws, they believe only those with legislative authority should make them. These critics fail to recognize that court judgments and commissions made by our governor, when constitutionally granted, are just as valid and binding as laws passed by the legislature. Any constitutional act of power, whether from the executive or judiciary, has as much legal force as one from the legislature; and so, whatever we may call the treaty power or however binding treaties may be, the people may quite properly assign the power to a body separate from the legislature, executive, or judiciary. Just because lawmaking power is given to the legislature, it doesn’t mean they should also be given every other sovereign power over the citizens.

Others, though willing to accept that treaties be made as proposed, object to their status as the SUPREME laws of the land. They argue, and claim to believe, that treaties, like acts of assembly, should be able to be repealed at will. This view seems new and unique to this country, but both new errors and new truths often emerge. These men should reflect that a treaty is essentially a bargain, and that we would never find another nation willing to enter into any binding agreement with us that would obligate them absolutely, but allow us to back out whenever we pleased. Lawmakers can, of course, amend or repeal their own laws; and it's also true that those who make treaties can alter or cancel them; but let us remember, treaties are not made by just one of the parties—but by both; so, just as both have to agree to make one, both must agree to change or cancel it. Therefore, the proposed Constitution does not make treaties any more binding; they are just as binding, and just as far out of reach of ordinary legislative acts, now as they will be in the future or under any type of government.

While some skepticism and vigilance is healthy in republics, yet, when it is excessive—like bile in the natural body—it can so distort perception that people are easily deceived by false appearances. This is likely the source of some fears that the President and Senate might make treaties that don’t serve all the States equally. Others worry that two thirds could oppress the remaining third, and ask whether these officials are adequately responsible for their actions; whether, if they act corruptly, they can be punished; and, if they make a harmful treaty, how we can be rid of it.

Since all the States are equally represented in the Senate, by individuals most able and willing to defend their constituents’ interests, every State will have equal influence—especially as long as they choose wisely and ensure their representatives attend diligently. As the United States grows more national in identity, the good of the whole will become an increasing focus, and the government would have to be truly weak to forget that the good of all is advanced only by advancing each part. The President and Senate cannot make any treaty by which they and their own families and property will not be as equally bound as anyone else; having no separate private interests, they have no temptation to ignore the national interest.

As for corruption, such an outcome is not to be supposed. Only someone very unlucky in their experiences or with a particularly suspicious nature could see it as likely that the President and two-thirds of the Senate would ever act in so disgraceful a way. The idea is simply too far-fetched and offensive to take seriously. If such a situation were to happen, any treaty obtained through fraud would, like any other fraudulent contract, be null and void according to the law of nations.

For questions about their responsibility, it is hard to see how it could be increased. Every motivating factor for fidelity—honor, oaths, reputation, conscience, love of country, family ties—gives us security. In short, since the Constitution has taken the greatest care to ensure these men will be competent and honest, we have reason to believe the treaties they make will be as beneficial as possible under the circumstances; and, when it comes to the fear of punishment or disgrace, this motivation for good behavior is well accounted for by the article dealing with impeachments.

PUBLIUS

## FEDERALIST No. 65. The Powers of the Senate Continued

### From the New York Packet. Friday, March 7, 1788.

HAMILTON

To the People of the State of New York:

The remaining powers that the plan of the convention assigns to the Senate, in its distinct capacity, include its participation with the executive in the appointment of officers, and its judicial function as a court for the trial of impeachments. Since the executive is the primary agent in appointments, the relevant provisions will be best considered when we examine that department. Therefore, we will conclude this section by considering the Senate’s judicial role.

A properly constituted court for impeachments is not only desirable but also especially hard to achieve in a government entirely based on elections. The cases it handles are those arising from the misconduct of public officials, or more specifically, from abuse or violation of public trust. Such offenses are rightly called POLITICAL, since they primarily involve harm done directly to society as a whole. Their prosecution will, for this reason, almost always stir the community’s passions and divide people into opposing groups, either supporting or opposing the accused. In many instances, these proceedings will become entangled with existing factions, fueling their hostilities, loyalties, influence, and interests on one side or another; and in such situations, there is always the significant danger that decisions will be swayed more by which party holds more power than by actual evidence of innocence or guilt.

The delicacy and importance of a responsibility that so deeply affects the political reputation and future of anyone involved in public affairs speaks for itself. The challenge of placing this responsibility responsibly, in a government built on regular elections, will quickly become clear when we consider that the most prominent individuals in such a system are often either the leaders or instruments of the most clever or the largest faction, and, for this reason, cannot reasonably be expected to maintain the neutral stance required to fairly evaluate those whose actions need reviewing.

It seems the convention believed the Senate was the most suitable body to hold this important trust. Those who truly understand the difficulty of the matter will be the least likely to condemn this choice, and will be most willing to give due consideration to the reasons that likely shaped the decision.

What, one may ask, is the real essence of this institution? Isn’t it intended as a NATIONAL INQUIRY into the conduct of public officials? If that is its purpose, who would be better suited as inquisitors for the nation than the nation’s own representatives? Everyone agrees that the power to initiate such an inquiry, or to bring charges of impeachment, belongs in one branch of the legislature. Shouldn’t the same logic also recommend that the other legislative branch be involved in the inquiry process? The model that inspired this institution guided the convention’s approach. In Great Britain, the House of Commons brings charges of impeachment, and the House of Lords decides them. Several of the state constitutions have followed this example. Both these sources seem to have treated the practice of impeachment as a check in the hands of the legislature over the executive branch. Isn’t this the right way to view it?

Where, except in the Senate, could one find a tribunal both dignified and independent enough? What other body would be likely to have ENOUGH CONFIDENCE IN ITS OWN POSITION to maintain, without fear or undue influence, the necessary impartiality between the INDIVIDUAL accused and the PEOPLE'S REPRESENTATIVES, who act as his accusers?

Could the Supreme Court be relied on to fulfill this role? It is doubtful that the members of that tribunal would always possess the high degree of courage needed to perform such a difficult task; and it is even more doubtful whether they would have the level of respect and authority that, at times, might be essential to help the public accept a decision opposing a charge initiated by their direct representatives. A lack of the first quality would be disastrous for the accused; a lack of the second could threaten public peace. The risk, in both respects, could only be eliminated—if at all—by making that tribunal larger than would be consistent with reasonable concern for cost. Having a large court for impeachment trials is also necessary due to the unique character of the proceedings. Such cases cannot be rigidly limited by the kinds of rules that usually constrain prosecutors or judges in ordinary cases, which serve to protect personal rights. There is no jury to come between the judges pronouncing the law and the party facing or receiving punishment. The grave responsibility that a court of impeachment has, to decide on the honor or disgrace of the most trusted and distinguished members of society, means that this responsibility should not be placed in the hands of only a few people.

These considerations alone seem enough to support the conclusion that the Supreme Court would have been an unsuitable replacement for the Senate as an impeachment court. There is also another reason that strongly reinforces this conclusion. It is this: The penalty resulting from a conviction on impeachment does not end the offender's punishment. Even after being sentenced to permanent exclusion from the respect, confidence, honors, and benefits of his country, the convicted person remains liable to prosecution and punishment in the ordinary course of law. Would it be right for the same people who determined his reputation and his most valuable rights as a citizen in one trial, to also decide his life and property in another trial for the same offense? Wouldn’t there be good reason to fear that an error in the first judgment would lead to an error in the second? That the strong bias of one decision could overshadow any new evidence that might emerge in the other? Anyone familiar with human nature will easily answer “yes,” and will recognize that by making the same people judges in both proceedings, those on trial would largely be deprived of the extra protection intended by two separate trials. The loss of life and property would often be almost guaranteed in a verdict that, in wording, involved nothing more than dismissal from a current, and ineligibility for a future, office. It might be argued that having a jury in the second trial would prevent this risk. But juries are often influenced by the views of judges. Sometimes, they even deliver special verdicts that pass the main question back to the court. Who would want to bet their life and property on a jury’s verdict, especially if that jury is influenced by judges who have already decided on their guilt?

Would it have been better to combine the Supreme Court and the Senate to form the court of impeachment? This combination would certainly have had some advantages; but would those have outweighed the major disadvantage already mentioned—that the same judges would play a role in both parts of the double prosecution the accused could face? To some extent, the benefits of such a union are achieved by having the chief justice of the Supreme Court preside over the impeachment court, as the convention’s plan proposes; this avoids many of the problems of fully combining the two bodies. This was likely the wise middle ground. I will refrain from reflecting on the new grounds this would have given for criticism against the judiciary, due to such a significant increase in its power.

Would it have been better to make up the court for trials of impeachment from people who are entirely separate from the other government branches? There are strong arguments both for and against such a structure. Some will not consider it a minor issue that this would add to the complexity of government and introduce a new element, the value of which would at best be questionable. But another objection that deserves anyone’s consideration is this: a court based on that design would either be very costly or subject to various practical problems. Its members would have to be either permanent officers, residing at the seat of government and entitled to fixed, regular salaries, or certain state officials summoned only when an impeachment actually occurred. It is hard to imagine any other significantly different, practical alternative. Since the court, for the reasons given above, ought to be large, the first approach will be rejected by anyone who can compare the extent of public needs against the means available to meet them. The second approach will be taken up cautiously by anyone who gives serious thought to the difficulty of assembling people from across the entire Union; the harm to innocent people from delays in resolving charges against them; the advantage to the guilty from the opportunities that delays might provide for scheming and corruption; and sometimes the harm to the country that could come from keeping men, who were only doing their duty, out of action while they are being persecuted by a reckless or manipulative majority in the House of Representatives. Although this latter possibility may seem harsh and unlikely to happen often, it should not be forgotten that the spirit of faction will, at times, control all large gatherings of people.

But even if one or another of the alternatives examined, or some new option, seems preferable to the convention’s plan in this respect, it does not mean that the Constitution, as a whole, ought to be rejected for this reason. If people waited to agree on every government institution until every part was perfectly designed, society would quickly dissolve into chaos, and the world into a wasteland. Where can we find this supposed standard of perfection? Who could ever unite an entire community’s differing opinions to agree on it—and get any one self-assured planner to give up his INFALLIBLE standard for his neighbor’s FALLIBLE one? In order to fairly oppose the Constitution, its critics must show not just that some specific provisions could be improved, but that the overall plan is bad and harmful.

PUBLIUS

## FEDERALIST No. 66. Objections to the Power of the Senate To Set as a Court for Impeachments Further Considered.

### From The Independent Journal. Saturday, March 8, 1788.

HAMILTON

To the People of the State of New York:

Reviewing the main objections that have been raised against the proposed court for impeachment trials will probably remove any lingering negative impressions on this topic.

The FIRST of these objections is that the provision in question mixes legislative and judicial powers in the same body, which goes against the important and well-known principle that these departments of government should remain separate. The true meaning of this principle has been discussed elsewhere, and it has been shown to be fully compatible with some limited blending of departments for special reasons, while still keeping them distinct in general. In fact, this partial mixing is, in some cases, not just proper but necessary for protecting different parts of government from each other. An absolute or qualified executive veto over laws passed by the legislature is agreed—by the most skilled political scholars—to be an essential defense against legislative overreach. And it can also be argued, as was suggested earlier, that powers relating to impeachment are an essential check for the legislature over the executive. Dividing impeachment responsibilities between the two chambers—giving one the power to accuse and the other the power to judge—avoids the problem of the same people being both accusers and judges, and protects against persecution caused by a faction in either body. Since conviction requires a two-thirds majority in the Senate, this extra step offers as much protection for the innocent as anyone could wish.

It is interesting to note how fiercely this aspect of the plan is attacked, based on this principle, by people who claim to completely admire our state’s own constitution; even though that constitution makes the Senate, together with the chancellor and the judges of the Supreme Court, not only a court of impeachment, but the highest state court for all civil and criminal cases. The number of chancellors and judges compared to senators is so small that, in reality, the highest authority in New York’s judiciary effectively rests with the Senate. If the convention’s plan is guilty, in this sense, of violating the famous principle that is so often mentioned (but so little understood), then how much more guilty must the Constitution of New York be?(1)

A SECOND objection to the Senate as a court of impeachment is that it adds too much power to that body, making the government too aristocratic. Critics point out that the Senate will share authority with the Executive in making treaties and appointments; if it is also given the final say in impeachment cases, this, they argue, gives the Senate overwhelming influence. Such an imprecise objection, by its very nature, is hard to answer precisely. Where is the standard or test by which we can decide what gives the Senate too much, too little, or just the right amount of power? Wouldn’t it be safer, and simpler, to ignore such vague calculations, and instead examine each individual power on its own, deciding on general principles where it can best be placed for the greatest benefit and least harm?

If we follow this approach, it will lead to a clearer, though perhaps not absolutely certain, result. The arrangement of the power to make treaties, as established by the plan of the convention, will then—if I am not mistaken—be seen as fully justified by the reasons given in a previous paper, as well as by other considerations that will arise under the next topic of our analysis. The wisdom of combining the Senate with the Executive in the power to appoint to offices, I trust, will be shown just as convincingly in the discussions to follow. And I believe the arguments in my last paper have gone a long way toward showing that it would not have been easy, if even possible, to find a more suitable body to determine impeachments than the one chosen. If this is indeed the case, then the hypothetical fear of the Senate becoming too powerful ought to be dismissed from our reasoning.

However, this idea—however it stands—has already been disproved in my previous remarks about the length of senators' terms in office. It was shown there, both from historical examples and logical reasoning, that the most POPULAR branch of every government with a republican spirit, being the general favorite of the people, will almost always be equal to or even stronger than any other part of the Government.

Yet beyond this active and powerful force preserving the balance of the national House of Representatives, the convention’s plan has further provided several important safeguards to offset the additional powers given to the Senate. The exclusive right to originate money bills will belong to the House of Representatives. That same house will have the sole authority to initiate impeachments—is this not a full counterbalance to the Senate’s power to decide them? The same house will also decide all presidential elections that do not result in a majority of the entire number of electors—a situation which, it cannot be doubted, will happen at least sometimes, if not often. The constant possibility of this situation will be a major source of influence for that body. The more this potential power is considered, the more significant it appears, as it gives the House the final say in determining the competition among the most distinguished citizens for the highest office in the land. It would not be unreasonable to predict that, as a source of influence, this will outweigh all the unique powers of the Senate.

A THIRD objection to the Senate serving as a court of impeachments stems from their involvement in appointments to office. It's suggested that they would be too lenient in judging the behavior of people they helped appoint. The logic of this objection would condemn a practice seen in all State governments, if not in every government we know: that of making those who hold office at pleasure dependent on the continued approval of those who appointed them. By the same reasoning, it could be claimed that the favoritism of the appointers would always protect the misbehavior of the appointees. But in contrast to this logic, existing practice assumes that those who make appointments, being responsible for the qualifications and abilities of those they select, and having an interest in the effective and respectable administration of public affairs, will generally have enough motivation to remove anyone who, by their actions, proves unworthy of their trust. Though reality may not always match this expectation, yet if it is generally correct, then the supposition that the Senate, which merely ratifies the President’s choices, would become biased toward those appointees—to the extent that they would ignore clear evidence of guilt so overwhelming that the people’s representatives have become their accusers—cannot stand.

Should any further argument be needed to prove how unlikely such bias is, it can be found in the nature of the Senate’s role in appointments. The President will NOMINATE, and, with the advice and consent of the Senate, will APPOINT. The Senate, then, does not actually CHOOSE; they can reject an Executive nomination, forcing a new one, but they cannot themselves pick the candidate—they can only approve or reject the President’s selection. Indeed, they may even prefer someone else at the very moment they accept the one nominated, simply because there's no strong reason to oppose him; and they cannot be sure that if they withhold approval, the President will nominate their favorite, or anyone they find more qualified. Therefore, it is unlikely that the majority in the Senate would feel any special fondness for appointees beyond the merits they seem to have, and proof of unworthiness would just as easily turn them against those appointees.

A FOURTH objection to the Senate acting as a court of impeachments is based on its connection to the Executive in making treaties. It has been claimed that this would make senators their own judges in any cases involving dishonest or treacherous handling of that power. After conspiring with the Executive to betray the nation with a harmful treaty, it is asked, how could we expect them to suffer the punishment they deserve, when they themselves would judge the accusation against them for their treachery?

This objection has been spread quite energetically, and, on the surface, with more logic than others raised about this part of the plan; yet I believe it rests on a mistaken basis.

The real safeguard intended by the Constitution against corruption and betrayal in treaty-making lies in the number and character of those entrusted with that power. The JOINT AGENCY of the Union’s Chief Magistrate and two thirds of the members of a body chosen by the collective wisdom of the State legislatures is intended as a guarantee for the loyalty of the national councils on this issue. The convention might rightly have considered punishing the Executive for ignoring the Senate's instructions, or for lacking integrity in carrying out negotiations assigned to him; they also may have considered punishing a few key Senators who used their influence corruptly on behalf of foreign agents. But they could not, with the same or greater justification, have planned for the impeachment and punishment of two thirds of the Senate for agreeing to a bad treaty, any more than a majority of either chamber could be punished for passing an unjust or unconstitutional law—a concept, as far as I know, not admitted by any government. After all, how could a majority in the House of Representatives impeach themselves? No better than two thirds of the Senate could fairly try themselves. Why should a majority of the House, who sacrifice society’s interests through bad legislation, escape with impunity any more than two thirds of the Senate guilty of the same harms via a bad treaty with a foreign nation? The truth is, in all such situations, it is essential to both the freedom and independence necessary for that body to deliberate, that its members are protected from punishment for actions taken collectively; society’s security must depend on choosing good officials, making it clearly in their interest to act with integrity, and making it as difficult as possible for them to form conspiracies against the public good.

As for misconduct by the Executive in disregarding the Senate’s instructions or opposing its intentions, we should not worry that the Senate will lack the will to punish those who abuse their trust or challenge their authority. We can at least rely on their pride, if not their virtue. And as for the corruption of influential members—by whose maneuvering the majority might be led into policies despised by the public—if clear proof of such corruption is produced, we can trust the usual side of human nature to ensure that the rest of the Senate would typically be eager to divert public anger from themselves and quickly sacrifice the authors of their disgrace.

PUBLIUS

1. In New Jersey, too, the final judicial authority lies in a branch of the legislature. In New Hampshire, Massachusetts, Pennsylvania, and South Carolina, one branch of the legislature serves as the court for impeachment trials.

## FEDERALIST No. 67. The Executive Department

### From the New York Packet. Tuesday, March 11, 1788.

HAMILTON

To the People of the State of New York:

The structure of the executive branch of the proposed government now deserves our attention.

There is hardly any part of the system whose design proved more challenging, and perhaps none has been attacked with less fairness or criticized with less understanding.

The authors opposing the Constitution seem to have gone out of their way to showcase their skill at misrepresentation. Appealing to the people’s aversion to monarchy, they have tried to stir up their fears and suspicions against the future President of the United States—not just as a potential, but as the fully developed, offspring of monarchy. To establish this supposed likeness, they have not hesitated to rely on fiction. The powers of the President—sometimes greater, sometimes less than those of New York’s governor—have been exaggerated into more than royal prerogatives. He has been described with qualities superior to those of the king of Great Britain. He has been shown to us with a crown on his head and royal purple trailing behind, seated on a throne surrounded by favorites and mistresses, receiving the envoys of foreign rulers with all the arrogant grandeur of majesty. The images of Eastern despotism and luxury have hardly been missing from this exaggerated picture. We have been made to tremble before the frightening faces of violent soldiers, and to blush at the predicted scandals of a future palace.

Such wild attempts to distort—or rather to completely alter—the true nature of the position make it necessary to carefully examine its real form and features: to accurately determine its true character and to expose the misrepresentations and false comparisons that have been so cunningly and persistently spread.

In doing so, it would be difficult for anyone to approach with moderation or seriousness the schemes—no less feeble than malicious—that have been crafted to shape public opinion about this subject. They so greatly surpass the usual, though still questionable, tactics of party politics that even the most open-minded and tolerant individual must set aside indulgence and respond with justified indignation. One cannot help but see deliberate deception in the claim that the proposed President is similar to the king of Great Britain. It is even harder to avoid that judgment concerning the reckless and blatant tricks used to push this false comparison.

In one instance, which I mention as a clear example of the general tendency, the boldness has gone so far as to attribute to the President of the United States a power which, according to the proposed Constitution, is EXPLICITLY assigned to the executives of the individual States. I’m referring to the power to fill casual vacancies in the Senate.

This bold attempt to test the judgment of the public was made by a writer who (regardless of his true abilities) has enjoyed considerable praise from his allies,(1) and who, based on this false and unfounded idea, has constructed a series of observations just as false and unfounded. Let him now face the evidence, and let him, if he can, justify or diminish the disgraceful insult he has made to the truth and to the principles of fair dealing.

The second clause of the second section of the second article empowers the President of the United States “to nominate, and by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other OFFICERS of United States whose appointments are NOT in the Constitution OTHERWISE PROVIDED FOR, and WHICH SHALL BE ESTABLISHED BY LAW.” Immediately after this clause comes another, which states: “The President shall have power to fill up all VACANCIES that may happen DURING THE RECESS OF THE SENATE, by granting commissions which shall EXPIRE AT THE END OF THEIR NEXT SESSION.” It is from this last provision that the supposed power of the President to fill vacancies in the Senate has been claimed. But with just a little attention to how these clauses are connected and to the clear meaning of the terms, we can see that this claim doesn’t even have a basis.

The first of these two clauses clearly provides only a process for appointing such officers “whose appointments are NOT OTHERWISE PROVIDED FOR in the Constitution, and which SHALL BE ESTABLISHED BY LAW”; so, it cannot apply to the appointment of senators, whose appointment is OTHERWISE PROVIDED FOR in the Constitution,(2) and who are ESTABLISHED BY THE CONSTITUTION—not needing a future establishment by law. This point will hardly be disputed.

The latter of these two clauses, it is equally clear, cannot be understood to include the power to fill vacancies in the Senate, for the following reasons: First. Its relation to the previous clause, which sets the general method of appointing officers of the United States, shows it to be only a supplement, created to provide an extra process for appointment in cases where the general process was inadequate. The usual power of appointment is held JOINTLY by the President and Senate, so it can only be exercised while the Senate is in session. But since it would have been improper to require the Senate to always be in session just for appointments, and since vacancies might occur WHILE THEY ARE IN RECESS—vacancies that the public interest might demand be filled immediately—the following clause is clearly intended to let the President, ALONE, make temporary appointments “during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” Second. If this clause is seen as an addition to the one before, the VACANCIES mentioned in it must refer to the “officers” described earlier; and, as we’ve shown, this excludes the members of the Senate. Third. The period in which the power applies, “during the recess of the Senate,” and how long the appointment lasts, “to the end of the next session” of the Senate, both clarify the meaning of the provision. If it had been meant to include senators, it would logically have assigned the temporary appointment power to the recess of the State legislatures (who appoint senators), not the recess of the national Senate (who have nothing to do with these appointments); and it would have set the term of temporary senators to end at the next session of the State legislature for the State where the vacancy occurred, instead of at the close of the next session of the national Senate. The body with the power to make the permanent appointment should logically control how the temporary appointment power is set up; and since the clause is written with the national Senate in mind, the vacancies mentioned must only refer to those officers whose appointment involves both the President and the Senate. Finally, the first and second clauses of the third section of the first article not only remove any chance of confusion but make any pretense of misunderstanding impossible. The first says that “the Senate of the United States shall be composed of two Senators from each State, chosen BY THE LEGISLATURE THEREOF for six years”; and the second states, “if vacancies in that body should happen by resignation or otherwise, DURING THE RECESS OF THE LEGISLATURE OF ANY STATE, the Executive THEREOF may make temporary appointments until the NEXT MEETING OF THE LEGISLATURE, which shall then fill such vacancies.” Here, an explicit power is given, in clear terms, to the State Executives to temporarily fill casual Senate vacancies; this not only disproves the claim that the earlier federal clause was meant to give that power to the President of the United States, but also demonstrates that such a claim, lacking any real plausibility, must have been made with the clear intent to deceive the people—a purpose too clear for sophistry to hide, too serious to excuse with hypocrisy.

I have deliberately chosen this example of misrepresentation and have made it very clear and strong, as unmistakable proof of the questionable means sometimes used to prevent a fair and impartial judgment of the true merits of the Constitution presented to the public. Nor have I hesitated, in such an extreme case, to use a sharpness of criticism unusual for these papers. I do not hesitate to challenge any fair-minded and honest opponent of the proposed government to say whether any words could be too strong for such a shameless and disgraceful attempt to deceive the citizens of America.

PUBLIUS

1. See CATO, No. V.

2. Article I, section 3, clause 1.

## FEDERALIST No. 68. The Mode of Electing the President

### From The Independent Journal. Wednesday, March 12, 1788.

HAMILTON

To the People of the State of New York:

The method of appointing the Chief Magistrate of the United States is almost the only significant part of the Constitution that has avoided harsh criticism, or even received mild approval from its opponents. The most reasonable of them, who has written on this matter, has even gone so far as to admit that the election of the President is fairly well protected.(1) I go further, and do not hesitate to say that even if the process is not perfect, it is at least excellent. It combines, to a high degree, all the advantages one could wish for.(E1)

It was important that the people’s will play a role in choosing the person to whom such a major responsibility would be given. This will be accomplished by giving the power of choice not to a permanent body, but to men chosen by the people for this special purpose and at that moment.

It was just as important that the immediate election be made by people who are most capable of judging the qualities fit for the position, under circumstances that encourage careful thought and wise consideration of all relevant reasons and motivations. A small group of persons, selected by their fellow citizens from the wider community, will most likely have the information and judgment needed for such a complex task.

It was also especially important to allow as little opportunity as possible for turmoil and disorder. This risk was not the least to be feared in the election of a magistrate who would play such a key role in running the government as the President of the United States. But the careful precautions built into the proposed system promise strong protection against this danger. The selection of SEVERAL people to form a group of electors is much less likely to throw the community into confusion than the selection of ONE person who would be the direct focus of everyone’s attention. And because the electors chosen in each State are to meet and vote within their own State, this separated and localized arrangement makes it much less likely that heated or excited feelings, which could spread among the electors to the wider public, will occur, compared to gathering all electors at one time and place.

There was nothing more important than setting up every possible barrier to conspiracy, intrigue, and corruption. These greatest threats to republican government might be expected to attack from many directions, but especially through the efforts of foreign powers to gain undue influence in our affairs. How could they better achieve this goal than by raising a puppet of their own to be chief magistrate of the Union? But the convention has guarded against all such dangers, with careful and thoughtful planning. They have not made the appointment of the President dependent on any existing group, who could be bribed or influenced ahead of time to sell their votes; instead, they have given this power, first and foremost, to an immediate act of the American people, who select individuals for the temporary and single purpose of making the choice. And they have made anyone who might be suspected of too much loyalty to the sitting President ineligible for this responsibility: no senator, representative, or any other person holding an office of trust or profit under the United States can be among the electors. Thus, without corrupting the public at large, those immediately involved in the election will begin the task free of improper influence. Their short-lived role, and their distinct situation (already mentioned), give good reason to expect they will stay uninfluenced to the end. Corrupting such a large group of men, spread out over thirteen States, would require time and resources. It would not be easy to suddenly sway them, even with motives that, while perhaps not strictly corrupt, could still lead them away from duty.

Another important goal was that the Executive should depend for his time in office solely on the people themselves. Otherwise, he might be tempted to trade his duty for the favor of those whose goodwill could prolong his office. This benefit is also secured by making his re-election depend on a special group of representatives appointed solely for the important task of making the choice.

All these advantages come together in the plan created by the convention: the people in each State choose a number of electors, equal to the total number of senators and representatives that State has in the national government; the electors then meet in their State and select a suitable person as President. Their votes are sent to the seat of government, and the person with a majority of the votes becomes President. If, however, no one gets a majority, and as it could be risky to let someone win with less than a majority, it is provided that in such a case, the House of Representatives will select from among the five candidates with the most votes the person they believe is best qualified for the office.

The process of election provides a strong moral certainty that the office of President will never go to anyone who is not highly qualified. Skills in petty intrigue and shallow popularity may be enough to elevate someone to the highest honors in a single State; but to earn the esteem and confidence of the entire Union—or even a significant portion of it—requires different abilities and merits. It is not an exaggeration to say that there will be a constant likelihood of seeing the office filled by individuals who are outstanding in both ability and virtue. Those who understand how much influence the executive has over a government’s good or poor administration will see this as a significant recommendation for the Constitution. While we may not fully agree with the political notion of the poet who says:

“For forms of government let fools contest—  
That which is best administered is best,”—  
we can safely say that the true test of a good government lies in its tendency and capability to produce good administration.

The Vice-President is to be chosen in the same way as the President, with the difference that the Senate performs, regarding the former, what the House of Representatives does regarding the latter.

Appointing a special officer as Vice-President has been criticized as unnecessary or even harmful. Some have argued that it would be better for the Senate to elect one of their own as an officer for that role. However, two reasons seem to justify the convention’s approach. First, to ensure the body can always reach a definite decision, the President of the Senate should have only a casting vote. If a senator from any State were removed from his Senate seat to become President of the Senate, that would mean his State would be exchanging a consistent vote for only a contingent one. Second, since the Vice-President may sometimes need to stand in for the President in the highest executive role, all the reasons supporting the election method for President apply just as strongly to the Vice-President. Notably, this objection also applies to our own State’s constitution. We have a Lieutenant-Governor, chosen by the people, who presides in the Senate and constitutionally substitutes for the Governor in similar circumstances—just as the Vice-President would step in for the President.

PUBLIUS

1. See federal farmer.

E1. Some editions substitute “desired” for “wished for”.

## FEDERALIST No. 69. The Real Character of the Executive

### From the New York Packet. Friday, March 14, 1788.

HAMILTON

To the People of the State of New York:

I will now examine the true character of the proposed Executive, as it is defined in the plan of the convention. This will clearly reveal the unfairness of the criticisms leveled against it.

The first thing to note is that, with a few exceptions, executive authority is vested in a single magistrate. However, this is hardly a point for comparison; for if, in this respect, there is a resemblance to the king of Great Britain, there is equally a resemblance to the Grand Seignior, the khan of Tartary, the Man of the Seven Mountains, or the governor of New York.

This magistrate is to be elected for four years and may be re-elected as often as the people of the United States choose to keep him in office. In these respects, there is a total difference between him and the king of Great Britain, who is an hereditary monarch holding the crown as inherited property, passing it down to his heirs forever. There is a closer similarity to the governor of New York, who is elected for three years and may be re-elected without limit. If we consider how much easier it is to build dangerous influence in a single State compared to the entire United States, we must conclude that a four-year term for the Chief Magistrate of the Union is much less a risk than a three-year term for the same office in a single State.

The President of the United States can be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office. He would then be liable to prosecution and punishment under ordinary law. By contrast, the person of the king of Great Britain is considered sacred and inviolable; there is no constitutional body to which he is answerable, and no punishment can be imposed upon him without causing a national revolution. In this crucial aspect of personal responsibility, the President of the United States would be in no better position than the governor of New York, and in fact worse off than the governors of Maryland and Delaware.

The President of the United States has the power to send a bill that has passed both houses of Congress back for reconsideration. That bill will become law if two thirds of both houses agree to it on reconsideration. The king of Great Britain, on the other hand, has an absolute veto over acts passed by both Houses of Parliament. Even though this power has not been used for some time, its existence remains real; the Crown has simply found other means of exerting influence—such as winning a majority in one or both Houses—making the use of a veto unnecessary except at significant cost. The President’s qualified veto is very different from the British king’s absolute veto, and is identical to the revisionary authority of this State’s council of revision, of which the governor is a part. In this way, the President’s power exceeds that of the governor of New York, who shares the authority with the chancellor and judges; but it is exactly like that of the governor of Massachusetts, whose constitution on this point appears to have been the model used by the convention.

The President is to be the “commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States. He is to have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment; to recommend such measures to Congress as he thinks necessary and appropriate; to convene, on extraordinary occasions, both houses of Congress, or either of them, and, if they disagree on when to adjourn, to set the time himself; to see that the laws are faithfully executed; and to commission all officers of the United States.” In most of these details, the President’s powers resemble those of the king of Great Britain and the governor of New York. The main differences are as follows: First, the President will have only occasional command of part of the nation’s militia, as provided by law. The king of Great Britain and the governor of New York always have full command of all the militia in their jurisdictions. In this way, the President’s power is less than that of either the monarch or the governor. Second, the President is commander-in-chief of the nation’s army and navy. While this title matches that of the king of Great Britain, the President’s actual authority is much less. His command amounts to the overall leadership of the military and naval forces, like the top general and admiral, but the British king has the additional powers of declaring war and raising and organizing fleets and armies—all of which, in the proposed Constitution, would belong to the legislature.(1) The governor of New York is only given command of the state’s militia and navy. But constitutions of some States declare that their governors are commanders-in-chief of both army and navy; and it may well be asked whether the governors of New Hampshire and Massachusetts do not possess greater powers in these respects than the President of the United States. Third, the President’s power to pardon extends to all cases except impeachment. The governor of New York may pardon in all cases, including impeachment, except treason and murder. Does this not make the governor’s power greater than the President’s, politically speaking? Any conspiracy against the government that has not become outright treason can be completely shielded from punishment by the governor’s pardon. Therefore, if the governor himself were involved in such a conspiracy, until it erupted into open violence, he could guarantee full impunity to his associates. The President of the Union, even if he could pardon treason prosecuted under the law, could not shelter any offender from punishment once impeached and convicted. Would not the chance for complete immunity for all preliminary acts be a greater temptation to undertake and pursue an enterprise against public liberty than the possibility of avoiding death and confiscation if the final violent effort failed? Would the second possibility have any effect at all, considering that the President might himself be implicated, and could be barred by his involvement from providing the hoped-for immunity? To judge this point, remember that under the proposed Constitution, the crime of treason is limited to “levying war against the United States, or adhering to their enemies, giving them aid and comfort”; and under New York law, it is similarly defined. Fourth, the President can adjourn Congress only in the specific case where the houses disagree on when to adjourn. The British monarch may prorogue or even dissolve Parliament. The governor of New York can also prorogue the state legislature for a limited time, a power that can be used in important situations.

The President, with the advice and consent of the Senate, can make treaties, provided two thirds of the senators present agree. The king of Great Britain is the sole and absolute representative of the nation in foreign affairs. He alone can make all treaties—of peace, commerce, alliances, and everything else. It has been suggested that his authority is not final, and that his agreements need Parliament’s approval. But I believe this idea was only raised recently. Every legal expert(2) and knowledgeable person in Britain knows that the treaty-making power fully resides with the crown, and that agreements made by royal authority have complete legal standing without any other approval. Sometimes Parliament adjusts existing laws to align with treaty terms, possibly giving rise to the impression that its cooperation is needed for the treaty to be binding. But this action comes from the need to adapt complex tax and trade laws to treaty changes, and to ensure that everything continues to run smoothly. In this area, there is no comparison between the power intended for the President and the actual power of the British king. The British king can do alone what the President can only do with a branch of the legislature. Admittedly, in this matter, the power of the federal Executive exceeds that of any State Executive. But this is natural, given that treaty powers belong to sovereigns. If the Confederacy were dissolved, it would be questioned whether the Executives of separate States held this delicate and important prerogative.

The President is also authorized to receive ambassadors and other foreign representatives. Though this subject has been the focus of much rhetoric, it is more a matter of dignity than power. It will have little to no effect on the government’s administration; and it is much more convenient to leave this duty with the President than to require the entire legislature, or one of its branches, to meet every time a new ambassador arrives, even for routine replacements.

The President is to nominate, and, with the advice and consent of the Senate, appoint ambassadors and other public ministers, judges of the Supreme Court, and, in general, all officers of the United States established by law and whose appointments are not otherwise provided for by the Constitution. The King of Great Britain is emphatically and truly styled the fountain of honor. He not only appoints individuals to all offices but can also create offices. He can grant titles of nobility at will and controls a vast number of church appointments. Clearly, the President's power in this regard is far inferior to that of the British king; it's also not equal to that of the governor of New York, if we interpret the meaning of the State constitution by the practices that have developed under it. The power of appointment in New York lies with a council, consisting of the governor and four Senate members chosen by the Assembly. The governor claims, and has often exercised, the right to make nominations and is entitled to a casting vote in appointments. If he truly has the right to nominate, his authority here matches that of the President, and surpasses it due to the casting vote. In the national government, if the Senate is evenly split, no appointment can be made; in New York's government, if the council is evenly split, the governor can break the tie and confirm his own nomination.(3) If we compare the transparency required in the mode of appointment by the President and an entire branch of the national legislature with the secrecy in the New York governor's method—making appointments behind closed doors with, at most, four, and often just two people—and if we consider how much easier it is to influence a small council than the much larger national Senate, we cannot hesitate to conclude that the chief magistrate of New York holds, in practice, far more power over appointments than the Chief Magistrate of the Union.

Therefore, except for the shared authority of the President regarding treaties, it would be hard to say whether that officer, overall, would have more or less power than the Governor of New York. And it appears even more clearly that there is no justification for the comparison that has been attempted between him and the King of Great Britain. But to make this contrast even sharper, it may help to group the main points of difference more closely.

The President of the United States is an officer elected by the people for four years; the King of Great Britain is a lifelong, hereditary ruler. One is subject to personal punishment and disgrace; the person of the other is sacred and inviolable. One has only a qualified veto over the acts of the legislative body; the other has an absolute veto. One has the right to command the military and naval forces of the nation; the other, in addition to this, can declare war and raise and regulate fleets and armies by his own authority. One has joint power with a branch of the legislature in forming treaties; the other alone holds the power to make treaties. One has similar shared authority in appointing officers; the other is the sole source of all appointments. One cannot grant any privileges at all; the other can make foreigners citizens, commoners into noblemen, and create corporations with all rights and privileges. One cannot set rules for the nation's commerce or currency; the other, in various ways, controls commerce—he can establish markets and fairs, regulate weights and measures, lay temporary embargoes, coin money, and allow or prohibit foreign currency. One has no trace of spiritual authority; the other is the supreme head and governor of the national church. What answer should we give to those who claim that things so different are somehow alike? The same answer we should give to those who claim that a government whose power rests with the elected, periodic servants of the people is an aristocracy, a monarchy, and a despotism.

PUBLIUS

1. A writer in a Pennsylvania newspaper, using the pen name TAMONY, has claimed that the King of Great Britain owes his power as commander-in-chief to an annual mutiny bill. The truth, however, is that his power in this area is ancient, and was only challenged, “contrary to all reason and precedent,” as Blackstone (vol. i., page 262) says, by the Long Parliament of Charles I. But by the statute of the 13th year of Charles II, chapter 6, it was declared that the sole supreme government and command of the militia within his Majesty’s realms and dominions, and of all forces by sea and land, and all forts and strongholds, EVER WAS AND IS the undisputed right of his Majesty and his royal predecessors, kings and queens of England, and that neither or both houses of Parliament can or ought to claim the same.

2. See Blackstone’s Commentaries, Vol I.

3. Honesty requires admitting that I do not think the governor's claim to the right of nomination is well founded. However, it is reasonable to argue from the practices of a government until those practices are constitutionally challenged. And aside from this claim, when we consider the matter fully and pursue all its consequences, we would likely reach a similar conclusion.

## FEDERALIST No. 70. The Executive Department Further Considered

### From The Independent Journal. Saturday, March 15, 1788.

HAMILTON

To the People of the State of New York:

There is an idea, not without supporters, that a strong Executive is at odds with the spirit of a republican government. The enlightened supporters of this form of government must hope that this belief is unfounded, since admitting its truth would mean admitting the failure of their own principles. Energy in the Executive is a key part of the definition of good government. It is essential for protecting the community from foreign attacks; it is equally vital to the steady administration of laws, to protecting property from those irregular and forceful groups that sometimes disrupt the normal course of justice, and to safeguarding liberty against the schemes and attacks of ambition, faction, and anarchy. Anyone familiar with Roman history knows how often that republic had to rely on the absolute power of a single person with the powerful title of Dictator—whether to resist the plots of ambitious individuals seeking tyranny, the uprisings of social classes threatening the very existence of government, or invasions by foreign enemies threatening Rome's conquest and destruction.

There is no need, however, to multiply arguments or examples on this point. A weak Executive leads to weak execution of government. Weak execution is just another way of saying poor execution; and a government poorly carried out, whatever its theoretical design, will prove to be, in practice, a bad government.

Assuming, then, that all reasonable people agree on the necessity of a strong Executive, the only question remaining is: What are the ingredients of this energy? To what extent can they be combined with other qualities that provide republican safety? And how far does this combination characterize the plan proposed by the convention?

The ingredients that create energy in the Executive are, first, unity; second, duration; third, an adequate provision for support; fourth, sufficient powers.

The ingredients that create safety in the republican sense are, first, a proper dependence on the people, and second, a proper level of responsibility.

The politicians and statesmen most respected for the soundness of their principles and the justice of their views have argued in favor of a single Executive and a large legislature. They have rightly considered energy to be the most vital quality for the former, and have seen this as best achieved in a single person's hands. Equally, they have considered the latter best suited for deliberation and wisdom, and best able to earn the people's trust and safeguard their rights and interests.

That unity encourages energy will not be disputed. Decisions, action, secrecy, and speed will generally characterize the acts of one person far more than the actions of a larger group; and as the group grows, these qualities tend to diminish.

This unity can be undermined in two ways: either by giving power to two or more magistrates of equal rank and authority, or by giving it, at least visibly, to one man but requiring him, in whole or part, to act under the supervision and cooperation of others, acting as his advisers. The first example comes from the two Consuls of Rome; the latter can be seen in several State constitutions. New York and New Jersey, if I recall correctly, are the only States that have fully entrusted executive authority to single men.(1) Both ways of undermining executive unity have their supporters, though those in favor of an executive council are more numerous. Both are subject, if not to the same, then at least to similar objections and can generally be considered together.

Experience from other nations provides little useful guidance here. Still, as far as it teaches us anything, it teaches us not to favor multiple executives. We know the Achaeans, after trying out two Praetors, chose to do away with one. Roman history records many harms suffered by the republic from disagreements between the Consuls, and between the military Tribunes who sometimes replaced them. But it gives us no example of special benefits gained from having more than one such official. That disagreements between them were no more frequent or more severe is surprising—until we consider the unique situation of the republic and the wise policy shaped by its circumstances, followed by the Consuls, of dividing governmental duties. The patricians, continually struggling with the plebeians to maintain their long-held authorities and honors, usually saw the Consuls (generally chosen from the patrician class) united by their mutual interest in preserving the privileges of their order. Also, as the republic's military expanded the empire's boundaries, it became standard practice for the Consuls to divide the administration by lot—one staying at Rome to govern the city and its surroundings, the other commanding in the distant provinces. This expedient no doubt greatly helped prevent conflicts and rivalries that might otherwise have disrupted the peace of the republic.

But leaving behind the dim light of historical research and focusing purely on reason and good sense, we will find much stronger reasons to reject, rather than approve, the idea of a plural Executive—no matter its form.

Whenever two or more people are engaged in any common endeavor or pursuit, there is always a risk of differences in opinion. If it is a public trust or office, where they possess equal authority and dignity, there is a particular danger of personal rivalry and even hostility. These situations, and especially all of them combined, are likely to lead to bitter disagreements. Whenever these occur, they diminish respect, weaken authority, and disrupt the plans and actions of those involved. If such disagreements ever attacked the highest executive office of a country—if it were held by multiple people—they could obstruct or ruin the most important decisions of the government during its most critical moments. Worse still, they could divide the nation into violent and unresolvable factions, loyal to different individuals within the executive office.

People often oppose something simply because they had no part in planning it, or because it was planned by someone they dislike. But if they have been consulted and have disagreed, their opposition then appears, to them, as a duty of self-interest. They feel honor-bound, driven by pride in their own infallibility, to ensure the failure of anything decided against their opinion. Honest and well-meaning people have witnessed with horror just how far this tendency can go, and how frequently the greater good is sacrificed to the vanity, ego, and stubbornness of individuals who have enough influence to make their personal passions and whims seem important to the public. Perhaps the question before the public today may sadly provide examples of the harmful effects of this weakness—or rather, this vice—in our character.

According to the principles of free government, these kinds of challenges must inevitably be tolerated in the formation of the legislature; but it is unnecessary, and thus unwise, to introduce them into the executive branch. In fact, here they can be the most dangerous. In the legislature, quick decision-making is more often a drawback than a benefit. Differences of opinion and party feuds in that branch of government, though sometimes causing useful plans to stall, often foster deeper discussion and caution and help prevent excesses by the majority. Once a legislature takes a resolution, contrary opinions must yield. That decision becomes law, and to resist it is punishable. No such favorable conditions excuse or counteract the drawbacks of disagreement in the executive branch. Here, the disadvantages are pure and undiluted; there is no natural endpoint for disagreement. Such disputes weaken and hinder the carrying out of any plan from beginning to end, directly undermining the vital qualities the Executive needs most—energy and promptness—without offering any compensating benefit. In times of war, when the energy of the Executive is critical for national security, everything would be at risk from its plurality.

It must be admitted these arguments apply most strongly to the first scenario—a group of executives with equal rank and authority—a plan whose supporters are unlikely to be many. Yet these reasons also apply, though less so, to the idea of an executive council whose approval is constitutionally required for the main Executive's actions. A clever clique within such a council could disrupt and sap the strength of the entire administration. Even without such a clique, simply having a variety of opinions would infuse the executive authority with habitual weakness and delay.

(But one of the most serious objections to a plural Executive—equally relevant to both the above plans—is that it hides faults and destroys accountability.

There are two types of responsibility: to criticism, and to punishment. The first is more important, especially in elected offices. People in positions of public trust far more often act in ways that make them unworthy of that trust, rather than making themselves liable for legal punishment. Yet adding more people to the Executive only makes it harder to identify wrongdoing in either case. Amid mutual finger-pointing, it often becomes impossible to pinpoint whose fault or which group should be blamed or punished for a harmful policy or set of bad policies. The blame is shifted back and forth with such skill, and under such reasonable appearances, that the public is left uncertain about who is actually at fault. Sometimes, when many people have had different roles in a national failure or mistake, it’s clear that there was mismanagement, but impossible to determine exactly who is responsible for the problem.)

“I was overruled by my council. The council was so divided that no better decision could be reached on the matter.” Such excuses are always available, whether true or not. And who will take the trouble—or be willing to face the public’s anger—to rigorously investigate the hidden details of such actions? If some citizen is determined enough to take on this thankless task, and there is any cooperation among the parties involved, it is easy to introduce so much confusion that no one can say precisely what any one of them did.

In the single example where the governor of this State acts with a council—specifically, in appointing officials—we have already seen these problems arise. Scandalous appointments to important offices have been made. In some clear cases, EVERYONE has agreed it was the wrong decision. When investigated, the governor blames the council members, who in turn blame the governor’s nominations. Meanwhile, the people are left entirely unsure whose influence led to such clearly unqualified and improper appointments. Out of consideration for individuals, I will not name specifics.

It’s clear from these points that a plural Executive takes away the two greatest safeguards the people have for proper use of delegated power: first, the checks of public opinion, which become ineffective when blame for bad decisions is both divided and uncertain; and second, the ability to clearly and easily see when those in power have done wrong—either for the purpose of removing them from office or actually punishing them, if the case allows.

In England, the king is the permanent chief magistrate, and it’s a long-standing principle for the sake of public stability that he is not held responsible for how he governs and his person is considered untouchable. So, nothing could be wiser than to provide the king with a constitutional council responsible to the nation for their advice. Without this, there would be no accountability at all in the executive branch—a situation that is unacceptable in free government. But even in England, the king is not bound by his council’s decisions, though they do answer for their advice. He alone decides whether or not to follow their counsel in exercising his office.

However, in a republic, where every official should be personally accountable for their actions in office, the rationale for a council, as found in the British system, not only fails to apply but actually argues against the idea. In the British monarchy, it serves as a substitute for the king’s immunity—a kind of guarantee to the public of good conduct. In the American republic, however, it would weaken or nearly destroy the accountability meant for the Chief Magistrate.

The popularity of executive councils in State constitutions comes from a longstanding suspicion of concentrated power: the belief that power is safer when divided among several, rather than placed in one person. Even if that idea were valid here, I would argue the supposed benefit doesn’t outweigh the many other disadvantages. But I don’t believe the principle applies to executive power at all. I fully agree with a writer, praised by the famous Junius as “deep, solid, and ingenious,” who said, “the executive power is more easily confined when it is ONE”; that it is far safer to have a single focus for the people’s scrutiny and vigilance; and, in summary, that multiplying the Executive is generally more of a risk to liberty than a benefit.

With some thought, we can see that the supposed security in having multiple executives is actually unattainable. Either the group is so large that conspiracy among them is unlikely, or else, being a small group, the combined power and influence of several people is more threatening to liberty than any one person’s influence alone. If power is in the hands of a small group who can easily combine their interests, it becomes even more open to abuse, and more dangerous when abused, than if it is entrusted to a lone individual—who, simply by being alone, faces greater public scrutiny and suspicion, and cannot gather as much collective influence as a group could. The Roman Decemvirs, named for their number, were more dangerous as a group than any single member would have been. No one would suggest an Executive that large; proposals typically range from six to twelve for such a council. Even in the largest version, it is not too difficult for them to act together as a bloc; and such a coalition in America would be far more to fear than the ambition of just one person. A council attached to an accountable executive usually does nothing but hinder their good intentions, often serves as tools or partners for their bad ones, and almost always provides cover for their faults.

I will not go into the costs, though it is obvious that if the council were large enough to serve its intended purpose, the salaries of its members—who would have to leave home and reside at the government’s seat—would create a major expense for a questionable advantage. I will only say that, before the new Constitution arrived, I seldom met an informed person from any State who did not agree, as a matter of experience, that the unitary executive in this State was one of the best features of our constitution.

PUBLIUS

1. New York has no council except for the single purpose of appointing to offices; New Jersey has a council the governor may consult. But I think, from the terms of the constitution, their decisions do not bind him.

2. De Lolme.

3. Ten.

E1. Two versions of these paragraphs appear in different editions.

## FEDERALIST No. 71. The Duration in Office of the Executive

### From the New York Packet. Tuesday, March 18, 1788.

HAMILTON

To the People of the State of New York:

The length of time in office has been mentioned as the second requirement for an effective Executive authority. This concerns two main objectives: the personal firmness of the executive leader in using his constitutional powers, and the stability of the system of administration established under his leadership. Regarding the first, it should be clear that the longer someone serves in office, the greater the likelihood of achieving this crucial benefit. Human nature generally dictates that a person values what he possesses according to how secure or insecure his claim to it is; he’ll be less attached to something held temporarily or on uncertain terms than to what he holds by a stable, secure right. Naturally, he’ll be willing to risk more for something permanent than for something fleeting. This logic applies to political privilege, honor, or trust just as much as to ordinary property. The implication is that someone serving as chief magistrate, knowing that he MUST step down very soon, is likely to feel too little invested in the office to risk major criticism or trouble by independently using his powers, or by confronting temporary discontent which may exist among a large part of society, or even a powerful faction in the legislative body. If, instead, he MIGHT have to step down unless re-elected, and wants to be re-elected, then his hopes and his fears together would even more likely undermine his integrity and weaken his resolve. In any case, weakness and indecisiveness would come to define the office.

There are some who would be inclined to see the Executive’s submission to prevailing trends—whether in society or the legislature—as its best trait. But such people have very misguided ideas about both the reasons for government and the right methods to promote public happiness. The republican principle requires that the considered opinion of the community should guide those managing its affairs, but it does not demand that they yield completely to every sudden fit of emotion, or every temporary impulse inspired by those skilled in flattering the public’s prejudices to exploit their interests. It's fair to say people usually INTEND the PUBLIC GOOD. Often, even their mistakes are made with good intentions. Still, their common sense would reject a flatterer who claims the people always REASON CORRECTLY about the best MEANS of promoting the public good. They know from experience they sometimes make mistakes; the real surprise is that they make so few, considering they are always being targeted by parasites and flatterers, by the ambitious, the greedy, and the desperate, by those who win their trust without deserving it, and by those who strive to gain it rather than earn it. When circumstances arise where the public’s interests conflict with their inclinations, it is the duty of those appointed as guardians of those interests to resist temporary illusions, to give the public time for calmer, more considered judgment. There have been cases where such conduct has saved the people from the disastrous results of their own mistakes, earning lasting gratitude for the courage of those who dared to serve the public at risk of its displeasure.

But however much we might want to demand unlimited compliance from the Executive toward the people’s wishes, it would be wrong to insist on such compliance with the legislature’s desires. The legislature may at times stand against the people, while at other times the people may be neutral. In any of these situations, it is certainly important that the Executive be able to act on his own judgment with vigor and decisiveness.

The same principle that teaches us to separate the different branches of power also teaches us to make these branches independent from each other. Why separate the executive or judiciary from the legislature, if both can be completely controlled by the legislative branch? This would make the separation a formality only, unable to achieve the goals for which it was set up. Being subject to the laws is very different from being under the control of the legislature. The first is consistent with the basics of good government; the second goes against them, combining all power in the same hands regardless of the Constitution's form. The tendency of the legislature to absorb all power has been explained and demonstrated with examples in earlier papers. In purely republican governments, this tendency is almost impossible to resist. Members of a popular assembly sometimes seem to believe they *are* the people themselves, showing impatience and irritation at any opposition, as if the executive or judiciary using their rights were violating legislative privilege and disrespecting their dignity. Such assemblies often act to dominate the other departments, and since they usually have public support, they act with such force that it becomes very difficult for the rest of the government to maintain the Constitution's balance.

Someone might ask how a short term of office affects the Executive’s independence from the legislature, unless the legislature has the power to appoint or remove him. One answer, as already mentioned, is that a man tends not to care much about something he will only have for a short time, making him less likely to risk inconvenience or danger for its sake. Another, perhaps clearer though not more conclusive, answer is that the legislative body holds influence over the people, and could work to block the re-election of a man who has made himself unpopular with them by standing up against a corrupt plan they devise.

It may also be asked whether a four-year term achieves the intended purpose; and if not, whether a shorter period—which might seem safer in terms of guarding against ambition—wouldn’t be preferable to a longer term that is still too brief to develop the necessary firmness and independence in the officeholder.

It cannot be claimed that a term of four years, or any set duration, will fully achieve that goal; but it would help enough to have a real effect on the government’s spirit and character. Between the start and end of such a term, there would always be a substantial period when the end is not imminent, so it wouldn't unduly influence the conduct of a leader who has a reasonable degree of courage. He might believe there would be time enough before the end arrives to convince the public of the wisdom of his policies. True, as re-election approaches, and the public is about to pass judgment, his confidence—and therefore his firmness—may diminish; but both would still benefit from having had enough time in office to earn respect and goodwill from the people. He could then safely risk more, according to the proof he’s given of his integrity and wisdom, and the reputation he’s gained among his fellow citizens. On the one hand, a four-year term will encourage a strong Executive enough to be a valuable part of the office. On the other, it’s not long enough to threaten public liberty. If the British House of Commons, starting with only the mild power to AGREE or DISAGREE to new taxes, quickly limited the powers of the Crown and the nobility to what was compatible with free government—raising themselves to a coequal branch of the legislature; if they were even able, at one time, to abolish both royalty and aristocracy, overturning the old order in Church and State; if they recently made the monarch tremble at the thought of a proposed innovation(1)—then what is there to fear from an elected President serving a four-year term, with powers much more limited than those of the British monarch? The only fear should be that he may not be strong enough for the tasks set by the Constitution. I’ll only add: if the term of office is so short that we doubt his firmness, then it’s illogical to fear his becoming too powerful.

PUBLIUS

1. This refers to Mr. Fox’s India bill, which passed the House of Commons but was rejected by the House of Lords, reportedly to the satisfaction of the people.

## FEDERALIST No. 72. The Same Subject Continued, and Re-Eligibility of the Executive Considered.

### From The Independent Journal. Wednesday, March 19, 1788.

HAMILTON

To the People of the State of New York:

The administration of government, in its broadest sense, includes all the actions of the political body—whether legislative, executive, or judicial—but in its most common and precise meaning, it refers only to executive details, and especially belongs to the executive office. Conducting foreign negotiations, preparing financial plans, managing and distributing public funds as directed by the legislature, organizing the army and navy, directing military operations—these and similar matters are what is generally meant by the administration of government. The people who immediately handle these different areas should be considered assistants or deputies to the chief magistrate. Therefore, they should get their positions from his appointment, or at least his nomination, and they should be under his supervision. This understanding immediately shows why the length of the executive’s term is closely connected to the stability of administration. Successors often try to reverse what their predecessor did, believing it shows their own capability and merit; and if their appointment results from public choice, they’re justified in thinking the removal of the previous officeholder was due to disapproval of his policies, so that the less they resemble him, the more the public will favor them. These ideas, along with personal loyalties and preferences, would likely prompt every new President to replace many subordinate officials; combined, these factors inevitably lead to a shameful and damaging instability in government administration.

I believe a significant term in office should be accompanied by eligibility for re-election. The first gives the officeholder the motivation and resolve to do his job well, and gives the people time to observe and judge his policies through experience. The second allows the people, if they approve his work, to keep him in office—and thus continue benefiting from his talents and virtues, securing for the government the advantages found in a steady, effective administration.

At first glance, nothing seems more reasonable—and yet more misguided upon deep inspection—than a plan some have supported: to allow the chief magistrate to serve for a set term, then bar him from office again, either for a period or forever. Whether temporary or permanent, this exclusion would have nearly the same effects, and they would generally be more harmful than beneficial.

One negative effect of this exclusion would be a decrease in motivation for good behavior. Few people would feel as much zeal in carrying out their duties if they knew that the benefits tied to their position would have to be given up at a set time, compared to when they could hope to keep those benefits by proving themselves worthy. This point cannot really be disputed, as long as we accept that the desire for reward is one of the strongest motivators of human behavior, and that the best way to ensure people are faithful to their duties is to align their interests with their responsibilities. Even the desire for fame—the main passion of the noblest minds—would inspire someone to undertake extensive and challenging projects for the public good, requiring considerable time to mature and complete, if they could hope to complete what they started. But if they knew they would have to leave before finishing the work, and had to trust both their project and their reputation to those who might not be as capable or friendly, they would be discouraged from trying in the first place. In such a scenario, the best we could expect from most people is that they do no harm, rather than that they do good.

Another negative effect of exclusion is the temptation toward selfish motives, corruption, and even usurpation. A greedy person in office, knowing that he would soon have to give up his salary and perks, would be strongly tempted to make the most of the opportunity while it lasted. Such a person might not hesitate to use the most corrupt methods to maximize his short-term gain—whereas with a different outlook, the same person might be content with the official benefits and might not want to risk the consequences of abusing his position. His own greed might restrain him from further greed. Furthermore, this person might also be vain or ambitious, not just greedy. If he could expect to extend his honors by behaving well, he might hesitate to prioritize his desire for wealth over his desire for status. But if he knew his time in office would inevitably end, his greed would likely overpower his caution, vanity, or ambition.

An ambitious man, finding himself at the height of his country's honors and knowing he would soon have to step down for good, would realize that no amount of merit could save him from losing his position. Such a man would be much more tempted to seize an opportunity to try to extend his power—at any personal risk—than if he believed he could achieve the same outcome by fulfilling his duties faithfully.

Would this system promote community peace or government stability if several men who had once held the nation’s top office were to roam among the people like discontented ghosts, longing for a position they could never again attain?

A third negative effect of the exclusion would be depriving society of the experience the chief magistrate gains while in office. The saying “experience is the parent of wisdom” is recognized as true by both the wise and ordinary people. What quality is more desirable or necessary in those who govern nations? Where is it more important than in the chief executive of a nation? Is it wise to label this essential quality as undesirable in the Constitution, and declare that the moment it is acquired, the person must leave the position where it was gained and to which it is best suited? Yet that is exactly what rules that exclude men from serving their country after becoming qualified by experience do—they force people, who have prepared themselves through service, to stop when they are most able to benefit the nation.

A fourth negative effect is that the exclusion would banish men from offices where, in times of state emergencies, their presence could be crucial to public interest or safety. No nation has failed to experience, at some point, the absolute need for certain individuals in particular roles—sometimes even necessary for preserving its very existence. How unwise then, is any rule preventing a nation from using its own citizens as needed for its circumstances! Even if a particular individual is not personally essential, changing the chief magistrate at the outbreak of war, or during a similar crisis—even if replaced by someone equally capable—would always harm the nation by replacing experience with inexperience and undermining the established workings of the administration.

A fifth negative effect is that exclusion would serve as a constitutional ban on stability in government. By forcing changes in the top office, it would force constant changes in policy. It is unrealistic to expect that changing leaders will not change policies. The usual result is that people change, and, with them, policies change too. We need not fear too much stability while people have the option to make changes, nor should we want to prevent the public from continuing to trust a leader when they believe it is safe, and when consistent leadership could help avoid the bad effects of unsteady councils and shifting policies.

These are some of the disadvantages that come from the idea of exclusion. These arguments are strongest against a permanent exclusion; but even a partial exclusion—when it makes a candidate’s return to office uncertain and remote—would have almost the same negative effects.

What are the supposed advantages to offset these disadvantages? They are said to be: 1) greater independence for the executive; 2) greater safety for the people. Unless the exclusion is permanent, the first benefit does not even follow. But even then, might the executive have no goals beyond his current position, for which he might sacrifice his independence? Might he not have friends or allies for whom he'd be tempted to compromise? Might he be less willing to make necessary enemies by taking firm stands if he knows that, when he leaves office soon, he WILL inevitably face these enemies, potentially from a weaker position? Whether this system promotes or weakens independence is actually hard to determine.

As for the second so-called advantage, there’s even more reason to be doubtful. Were exclusion permanent, a person driven by unchecked ambition—the only kind of person to worry about in this case—would be extremely reluctant to leave such a post forever, especially after getting used to power. If he had managed to win over the people, he might persuade them to see the exclusion as an unfair and intolerable restriction, depriving them of the chance to express renewed confidence in someone they admire. Situations could arise in which public resentment about this rule, combined with a favorite leader’s thwarted ambition, might create more danger for liberty than possible continued reelection, as long as the people are using their constitutional freedom to choose.

The notion of preventing the people from keeping in office men who, in their view, merit approval and confidence is unnecessarily elaborate; its supposed benefits are at best uncertain, and they are clearly outweighed by the more certain and serious drawbacks.

PUBLIUS

## FEDERALIST No. 73. The Provision For The Support of the Executive, and the Veto Power

### From the New York Packet. Friday, March 21, 1788.

HAMILTON

To the People of the State of New York:

The third element needed to ensure executive strength is adequate support for the office. It’s clear that, without proper attention to this matter, separating the executive from the legislature would be practically meaningless. If the legislature could freely set the President’s salary and perks, they could make him as obedient to their wishes as they pleased. They could, in most cases, either starve him into submission or bribe him to surrender his judgment to their will. These words, taken to their fullest extent, may go further than intended. There are people who would never be pressured or bought off at the expense of their duty; but such integrity is rare, and for most people, control over their compensation amounts to control over their will. If any examples were needed to prove this simple point, even our own nation’s history offers cases where the executive was intimidated or seduced by the legislative body’s power over his finances.

Therefore, it’s hard to praise too much the wisdom shown in this area under the proposed Constitution. It states, “The President of the United States shall, at stated times, receive for his services a compensation which shall neither be increased nor diminished during the period for which he shall have been elected; and he shall not receive within that period any other emolument from the United States, or any of them.” It’s tough to think of a better arrangement. When a President is elected, Congress must once and for all decide what his salary will be for that term. After that, during his term, they have no power to change it—either up or down—until a new session begins with a new election. They cannot weaken his resolve by putting pressure on his needs, or tempt him by inflating his rewards. Neither the nation nor its member states may offer him, or may he accept, any compensation other than what was decided at the outset. So, he has no financial reason to give up the independence the Constitution intends.

The final ingredient for energy in the office is sufficient authority. Let’s move on to consider those powers proposed for the President of the United States.

The first point to note is the President’s limited veto power over acts or resolutions from both houses of Congress; in other words, his ability to return bills with his objections, which prevents them from becoming law unless two-thirds of both legislative houses later approve them.

The tendency of the legislative branch to infringe on the rights and absorb the powers of the other branches has already been raised and reiterated; the inadequacy of a mere written outline defining the boundaries of each has also been noted; and the necessity of equipping each branch with constitutional means for self-defense has been inferred and demonstrated. From these clear and indisputable principles arises the appropriateness of granting the Executive a negative—either absolute or qualified—over the acts of the legislative branches. Without such a power, the Executive would be utterly unable to defend himself against encroachments by the legislature. He might be gradually stripped of his authority by successive resolutions, or his office might be rendered powerless by a single vote. In either manner, the legislative and executive powers could quickly end up combined in the same hands. Even if the legislature had never shown a tendency to encroach on Executive rights, sound reasoning and theoretical propriety would still dictate that the one should not be left entirely at the mercy of the other, but should have a constitutional and effective means of self-defense.

However, this power serves another important purpose. It not only protects the Executive but also provides an added safeguard against the passage of bad laws. It forms a beneficial check on the legislative body, designed to shield the public from the effects of faction, haste, or any impulse contrary to the public good that might influence a majority.

The appropriateness of a negative has, on occasion, been challenged by the argument that it should not be assumed a single person would have more virtue and wisdom than a group; and that unless this is assumed, it would be wrong to grant the executive magistrate any form of control over the legislature.

But this objection, when examined closely, seems more plausible than sound. The matter does not rest on the assumption of superior wisdom or virtue in the Executive, but rather on the reality that the legislature is not infallible; that the pursuit of power may at times lead it to encroach on the rights of other government branches; that a spirit of faction may sometimes corrupt its deliberations; and that impulse may drive it into actions it would later regret. The primary justification for giving this power to the Executive is to let him defend himself; the secondary is to increase the protection of the community against hasty, inadvertent, or deliberately harmful laws. The more a measure is reviewed, and the greater the diversity among those who review it, the less likely errors will arise from lack of proper reflection, or slip-ups caused by the shared passions or interests of a single group. It is far less likely that harmful motives will influence all parts of government simultaneously on the same issue, than that such motives will alternately mislead each part.

It might be said that the power to stop bad laws also allows the stopping of good ones, and could serve either purpose. But this objection will mean little to those who understand the dangers of instability and constant change in the law—conditions which are the greatest flaw in our government’s character and spirit. Such people will view every check that limits excessive lawmaking and preserves the status quo at any given time as more likely to do good than harm—because it promotes stability in legislation. The harm of blocking a few good laws is more than outweighed by the benefit of preventing many bad ones.

This is not the whole story. The greater power and influence of the legislature in a free government, and the risk the Executive faces in challenging it, ensure that the negative would generally be used cautiously; the Executive would more often be accused of timidity rather than recklessness in using it. A king of Great Britain, with all the authority and influence his office brings, would today hesitate to veto the joint resolutions of Parliament. He would exhaust every influence to halt a measure he opposes before it reaches the throne, so as to avoid either letting it become law or risking public anger by going against Parliament. It is not likely he would ultimately use this prerogative except in clear or dire circumstances. All well-informed people in Britain recognize this fact. A significant time has passed since the Crown’s veto has been used.

If a magistrate as powerful and well-protected as the British monarch would be hesitant to use this power, it is reasonable to expect an even greater level of caution from the President of the United States, who holds executive authority for just four years in a government that is wholly and purely republican.

It is clear there is more danger the President may not use his power when needed than that he will use it too often or too aggressively. In fact, this very point has been cited as an argument against its usefulness—as a power that is disliked in appearance and useless in practice. But it does not follow that just because it is rarely used, it would never be used. In the situation for which it is primarily intended—an immediate attack on the Executive’s constitutional rights, or where the public good is clearly being sacrificed—a person of average firmness would use his constitutional tools for defense and heed the requirements of duty and responsibility. In the former scenario, his resolve would be strengthened by his personal interest in preserving the power of his office; in the latter, by the likelihood his constituents will support him, since they would likely favor the legislature in unclear cases but would not let their bias mislead them in an obvious case. I am considering here a magistrate with merely average firmness; some people, in any circumstance, will have the courage to do their duty at any risk.

The convention has taken a moderate course here, facilitating the exercise of this power by the executive magistrate, and making its efficacy depend on the opinion of a significant part of the legislature. Instead of an absolute veto, the proposal gives the Executive the qualified negative already described. This power would be far easier to use than the alternative. A person who might hesitate to defeat a law with his single VETO might not object to returning it for reconsideration, as it would only be finally rejected if more than one third of each house agreed with his objections. He would be encouraged that if his opposition succeeds, it would involve a substantial portion of the legislature alongside him, supporting the legitimacy of his actions in the eyes of the public. A direct and outright negative has a severity that is more likely to irritate than a simple statement of objections left for further evaluation. Since the latter is less offensive, it is more likely to be used and, thus, could in practice be more effective. We can hope it will rarely happen that improper motives guide as much as two-thirds of both legislative branches at once, especially when counterbalanced by the Executive’s influence. This is far less likely than such motives corrupting only a slim majority. An Executive power like this will often have a subtle yet powerful influence. When people involved in questionable pursuits know they might face opposition from an unpredictable source, they are often deterred by the mere possibility of resistance, from acting on impulses they would otherwise pursue eagerly if no such check existed.

As previously mentioned, in this State, the qualified negative is vested in a council composed of the governor, chancellor, and judges of the Supreme Court, or any two of them. This power has been used freely and often successfully. Its usefulness has become so obvious that those who were strong opponents during the drafting of the Constitution have, through experience, become leading supporters of it.(1)

I have previously noted that the convention, in shaping this aspect of their plan, deviated from this State’s model in favor of that of Massachusetts. Two strong reasons explain this choice. First, the judges who interpret the law might be improperly influenced if they had already reviewed a measure in a different capacity; second, frequent association with the Executive could cause them to become too involved in the Executive’s political aims, creating a dangerous alliance between the executive and judiciary. Judges must be kept as separate as possible from all activities but interpreting the law. It is particularly risky to expose them to the possibility of being influenced or corrupted by the Executive.

PUBLIUS

1. Mr. Abraham Yates, a strong opponent of the convention’s plan, is among their number.

## FEDERALIST No. 74. The Command of the Military and Naval Forces, and the Pardoning Power of the Executive.

### From the New York Packet. Tuesday, March 25, 1788.

HAMILTON

To the People of the State of New York:

The President of the United States is to be “commander-in-chief of the army and navy of the United States, and of the militia of the several States when called into actual service of the United States.” The wisdom of this provision is obvious, and it is so consistent with the general practices of the State constitutions that little more needs to be said to explain or justify it. Even those constitutions that otherwise tie the chief magistrate to a council typically assign the military authority to him alone. Of all government responsibilities, the direction of war especially requires the concentrations of power found in a single leader. Directing war is inherently the direction of the nation’s collective strength, and this authority is commonly considered an essential aspect of executive power.

“The President may require the opinion, in writing, of the principal officer in each of the executive departments, on any topic related to their respective duties.” I view this as redundant in the Constitution, since the right it describes would naturally flow from the office itself.

The President is also empowered to grant “reprieves and pardons for offenses against the United States, except in cases of impeachment.” Both humanity and sound policy demand that the power of pardon be as free as possible from restrictions. All nations’ criminal codes are necessarily severe, and without an accessible way to make exceptions for those who are unfortunate rather than malicious, justice would appear too harsh and cruel. Since the sense of responsibility is strongest when it rests with a single person, it follows that one individual is most likely to weigh the reasons for mercy carefully—and least likely to act out of motives to protect an unworthy recipient. The knowledge that the fate of another rests solely with him would make the President cautious; while the fear of being seen as weak or complicit would cultivate another form of carefulness. In contrast, people often feel emboldened when acting as a group, potentially reinforcing each other’s hardness or insensitivity to criticism for an unwise or insincere act of clemency. For these reasons, one person appears to be the best candidate to dispense the mercy of the government, rather than a group.

The expediency of vesting the power of pardoning in the President has, if I mistake not, been only contested in relation to the crime of treason. This, it has been urged, ought to have depended upon the assent of one, or both, of the branches of the legislative body. I shall not deny that there are strong reasons to be assigned for requiring in this particular the concurrence of that body, or of a part of it. As treason is a crime levelled at the immediate being of the society, when the laws have once ascertained the guilt of the offender, there seems a fitness in referring the expediency of an act of mercy towards him to the judgment of the legislature. And this ought the rather to be the case, as the supposition of the connivance of the Chief Magistrate ought not to be entirely excluded. But there are also strong objections to such a plan. It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever. It deserves particular attention, that treason will often be connected with seditions which embrace a large proportion of the community; as lately happened in Massachusetts. In every such case, we might expect to see the representation of the people tainted with the same spirit which had given birth to the offense. And when parties were pretty equally matched, the secret sympathy of the friends and favorers of the condemned person, availing itself of the good-nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary. On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. But the principal argument for reposing the power of pardoning in this case to the Chief Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory process of convening the legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity. The loss of a week, a day, an hour, may sometimes be fatal. If it should be observed, that a discretionary power, with a view to such contingencies, might be occasionally conferred upon the President, it may be answered in the first place, that it is questionable, whether, in a limited Constitution, that power could be delegated by law; and in the second place, that it would generally be impolitic beforehand to take any step which might hold out the prospect of impunity. A proceeding of this kind, out of the usual course, would be likely to be construed into an argument of timidity or of weakness, and would have a tendency to embolden guilt.

PUBLIUS

## FEDERALIST No. 75. The Treaty-Making Power of the Executive

### For the Independent Journal. Wednesday, March 26, 1788

HAMILTON

To the People of the State of New York:

THE President is to have power, “by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur.” Though this provision has been assailed, on different grounds, with no small degree of vehemence, I scruple not to declare my firm persuasion, that it is one of the best digested and most unexceptionable parts of the plan. One ground of objection is the trite topic of the intermixture of powers; some contending that the President ought alone to possess the power of making treaties; others, that it ought to have been exclusively deposited in the Senate. Another source of objection is derived from the small number of persons by whom a treaty may be made. Of those who espouse this objection, a part are of opinion that the House of Representatives ought to have been associated in the business, while another part seem to think that nothing more was necessary than to have substituted two thirds of all the members of the Senate, to two thirds of the members present. As I flatter myself the observations made in a preceding number upon this part of the plan must have sufficed to place it, to a discerning eye, in a very favorable light, I shall here content myself with offering only some supplementary remarks, principally with a view to the objections which have been just stated.

With regard to the intermixture of powers, I shall rely upon the explanations already given in other places, of the true sense of the rule upon which that objection is founded; and shall take it for granted, as an inference from them, that the union of the Executive with the Senate, in the article of treaties, is no infringement of that rule. I venture to add, that the particular nature of the power of making treaties indicates a peculiar propriety in that union. Though several writers on the subject of government place that power in the class of executive authorities, yet this is evidently an arbitrary disposition; for if we attend carefully to its operation, it will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either of them. The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society; while the execution of the laws, and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate. The power of making treaties is, plainly, neither the one nor the other. It relates neither to the execution of the subsisting laws, nor to the enaction of new ones; and still less to an exertion of the common strength. Its objects are CONTRACTS with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. The power in question seems therefore to form a distinct department, and to belong, properly, neither to the legislative nor to the executive. The qualities elsewhere detailed as indispensable in the management of foreign negotiations, point out the Executive as the most fit agent in those transactions; while the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a portion of the legislative body in the office of making them.

However proper or safe it may be in governments where the executive magistrate is an hereditary monarch, to commit to him the entire power of making treaties, it would be utterly unsafe and improper to intrust that power to an elective magistrate of four years’ duration. It has been remarked, upon another occasion, and the remark is unquestionably just, that an hereditary monarch, though often the oppressor of his people, has personally too much stake in the government to be in any material danger of being corrupted by foreign powers. But a man raised from the station of a private citizen to the rank of chief magistrate, possessed of a moderate or slender fortune, and looking forward to a period not very remote when he may probably be obliged to return to the station from which he was taken, might sometimes be under temptations to sacrifice his duty to his interest, which it would require superlative virtue to withstand. An avaricious man might be tempted to betray the interests of the state to the acquisition of wealth. An ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents. The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States.

To have intrusted the power of making treaties to the Senate alone, would have been to relinquish the benefits of the constitutional agency of the President in the conduct of foreign negotiations. It is true that the Senate would, in that case, have the option of employing him in this capacity, but they would also have the option of letting it alone, and pique or cabal might induce the latter rather than the former. Besides this, the ministerial servant of the Senate could not be expected to enjoy the confidence and respect of foreign powers in the same degree with the constitutional representatives of the nation, and, of course, would not be able to act with an equal degree of weight or efficacy. While the Union would, from this cause, lose a considerable advantage in the management of its external concerns, the people would lose the additional security which would result from the co-operation of the Executive. Though it would be imprudent to confide in him solely so important a trust, yet it cannot be doubted that his participation would materially add to the safety of the society. It must indeed be clear to a demonstration that the joint possession of the power in question, by the President and Senate, would afford a greater prospect of security, than the separate possession of it by either of them. And whoever has maturely weighed the circumstances which must concur in the appointment of a President, will be satisfied that the office will always bid fair to be filled by men of such characters as to render their concurrence in the formation of treaties peculiarly desirable, as well on the score of wisdom, as on that of integrity.

The remarks made in a former number, which have been alluded to in another part of this paper, will apply with conclusive force against the admission of the House of Representatives to a share in the formation of treaties. The fluctuating and, taking its future increase into the account, the multitudinous composition of that body, forbid us to expect in it those qualities which are essential to the proper execution of such a trust. Accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character; decision, secrecy, and despatch, are incompatible with the genius of a body so variable and so numerous. The very complication of the business, by introducing a necessity of the concurrence of so many different bodies, would of itself afford a solid objection. The greater frequency of the calls upon the House of Representatives, and the greater length of time which it would often be necessary to keep them together when convened, to obtain their sanction in the progressive stages of a treaty, would be a source of so great inconvenience and expense as alone ought to condemn the project.

The only objection which remains to be canvassed, is that which would substitute the proportion of two thirds of all the members composing the senatorial body, to that of two thirds of the members present. It has been shown, under the second head of our inquiries, that all provisions which require more than the majority of any body to its resolutions, have a direct tendency to embarrass the operations of the government, and an indirect one to subject the sense of the majority to that of the minority. This consideration seems sufficient to determine our opinion, that the convention have gone as far in the endeavor to secure the advantage of numbers in the formation of treaties as could have been reconciled either with the activity of the public councils or with a reasonable regard to the major sense of the community. If two thirds of the whole number of members had been required, it would, in many cases, from the non-attendance of a part, amount in practice to a necessity of unanimity. And the history of every political establishment in which this principle has prevailed, is a history of impotence, perplexity, and disorder. Proofs of this position might be adduced from the examples of the Roman Tribuneship, the Polish Diet, and the States-General of the Netherlands, did not an example at home render foreign precedents unnecessary.

To require a fixed proportion of the whole body would not, in all probability, contribute to the advantages of a numerous agency, better then merely to require a proportion of the attending members. The former, by making a determinate number at all times requisite to a resolution, diminishes the motives to punctual attendance. The latter, by making the capacity of the body to depend on a proportion which may be varied by the absence or presence of a single member, has the contrary effect. And as, by promoting punctuality, it tends to keep the body complete, there is great likelihood that its resolutions would generally be dictated by as great a number in this case as in the other; while there would be much fewer occasions of delay. It ought not to be forgotten that, under the existing Confederation, two members may, and usually do, represent a State; whence it happens that Congress, who now are solely invested with all the powers of the Union, rarely consist of a greater number of persons than would compose the intended Senate. If we add to this, that as the members vote by States, and that where there is only a single member present from a State, his vote is lost, it will justify a supposition that the active voices in the Senate, where the members are to vote individually, would rarely fall short in number of the active voices in the existing Congress. When, in addition to these considerations, we take into view the co-operation of the President, we shall not hesitate to infer that the people of America would have greater security against an improper use of the power of making treaties, under the new Constitution, than they now enjoy under the Confederation. And when we proceed still one step further, and look forward to the probable augmentation of the Senate, by the erection of new States, we shall not only perceive ample ground of confidence in the sufficiency of the members to whose agency that power will be intrusted, but we shall probably be led to conclude that a body more numerous than the Senate would be likely to become, would be very little fit for the proper discharge of the trust.

PUBLIUS

## FEDERALIST No. 76. The Appointing Power of the Executive

### From the New York Packet. Tuesday, April 1, 1788.

HAMILTON

To the People of the State of New York:

THE President is “to nominate, and, by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not otherwise provided for in the Constitution. But the Congress may by law vest the appointment of such inferior officers as they think proper, in the President alone, or in the courts of law, or in the heads of departments. The President shall have power to fill up all vacancies which may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”

It has been observed in a former paper, that “the true test of a good government is its aptitude and tendency to produce a good administration.” If the justness of this observation be admitted, the mode of appointing the officers of the United States contained in the foregoing clauses, must, when examined, be allowed to be entitled to particular commendation. It is not easy to conceive a plan better calculated than this to promote a judicious choice of men for filling the offices of the Union; and it will not need proof, that on this point must essentially depend the character of its administration.

It will be generally agreed that, in ordinary cases, the power of appointment should be arranged in one of three ways: it should either be vested in a single individual, or in a select assembly of a moderate size, or in a single person with the concurrence of such an assembly. Allowing the people at large to exercise it is clearly impractical, since—aside from other concerns—it would leave them little time for anything else. When, therefore, mention is made in the following arguments of an assembly or body of men, it should be understood to refer to a select body or assembly, as already described. The people as a whole, because of their numbers and scattered locations, cannot be regulated through the kind of systematic conspiracy and intrigue that will be cited as the main objection to confiding this power to a body of men.

Those who have reflected seriously on this topic, or who have considered earlier observations in these papers about the appointment of the President, will, I believe, agree with the idea that there would always be a strong likelihood that the office would be filled by a man of at least respectable abilities. With this premise, I continue by stating as a rule that one discerning individual is better suited to analyze and judge the unique qualities needed for specific offices than a group of men with equal or even greater discernment.

The sole and undivided responsibility of one person naturally creates a stronger sense of duty and a greater concern for reputation. For this reason, he will feel a stronger obligation and be more motivated to carefully examine the qualities required for each position and to select impartially those candidates who have the best claims. He will have fewer personal attachments to satisfy than a group of men, each of whom might be assumed to have an equal number, and will therefore be less likely to be swayed by feelings of friendship and affection. A single well-directed man, guided by a single mind, cannot be distracted or biased by the range of viewpoints, emotions, and interests that frequently disrupt and distort the decisions of a collective body. Nothing is more likely to stir people’s passions than personal concerns, whether about themselves or others who are to be chosen or favored. Therefore, whenever an assembly of men exercises appointment power, we should expect to witness the full play of all the private and party likes and dislikes, partialities and antipathies, attachments and animosities, that exist among the assembly members. The decision reached in such situations will, naturally, be the outcome of either one party conquering another or a compromise between the parties. In either scenario, the true merit of the candidate is often overlooked. In the first case, qualities best able to rally party support will be valued over those genuinely suited to the job. In the latter, the coalition usually hinges on an exchange: “Give us the man we want for this office, and you shall have yours for that.” This will be the usual method of negotiation. And it will rarely happen that promoting the public good will be the chief aim of either party victories or negotiations.

The validity of the principles stated here has been recognized even by many of those who have criticized the convention’s provision in this respect. They argue that the President alone should have been given the authority to make government appointments. But it is easy to show that every benefit expected from such an arrangement will, in practice, come from the power of nomination, which is proposed to be given to him, while several disadvantages of absolute appointment power would be avoided. In nominating, only his judgment would be involved, and since his sole duty would be to propose a candidate, subject to Senate approval, his responsibility would be as complete as if he made the final appointment. In this sense, there is no real difference between nominating and appointing. The same motives for responsible conduct would exist in both cases. And as no one could be appointed except by his prior nomination, every appointed person would, in fact, be his choice.

But couldn’t his nomination be rejected? I admit it could, but this would only lead to another nomination by him. The person ultimately appointed must be someone he prefers, even if not his first choice. It is also unlikely that his nominations would often be overruled. The Senate would not be tempted, by their preference for another, to reject his proposal, since they could not be sure that their preferred candidate would appear in subsequent nominations. Nor could they be certain that a later nominee would be more acceptable; and since their rejection might cast a stigma on the rejected individual, and seem like a criticism of the President’s judgment, they would rarely refuse approval unless there were strong and specific reasons.

Why, then, require the Senate’s cooperation? I answer: the need for their concurrence would have a powerful, though usually subtle, effect. It would be an excellent check on favoritism by the President and would strongly discourage the appointment of unqualified individuals out of state prejudice, family connections, personal loyalty, or the pursuit of popularity. Additionally, it would provide real stability to the administration.

It is clear that a man who alone controlled appointments would be much more governed by his own preferences and interests than if he had to submit his decisions to the scrutiny and approval of a different and independent body—especially one that is a full branch of the legislature. The risk of rejection would be a strong incentive for careful selection. The threat to his public reputation—and for an elected official, his political future—if he is seen to exhibit favoritism or to seek popularity inappropriately, when such behavior is subject to the observation of a body whose opinion greatly shapes public opinion, would act as a barrier against such conduct. He would be both ashamed and afraid to nominate, for the most prominent or lucrative positions, those whose only qualification is originating from his own state, being personally connected to him, or being sufficiently insignificant and pliable to serve as mere instruments of his wishes.

An objection to this reasoning is that the President, by using his nomination power, might gain the Senate’s compliance with his wishes. Assuming that human nature is universally corrupt is as much of an error in political reasoning as assuming it is universally virtuous. The concept of delegated power is based on the belief that there is enough virtue and honor in humanity to justify a reasonable level of trust, and experience confirms this. Even in the most corrupt times and governments, this has proven true. The British House of Commons, long accused of corruption, is widely acknowledged to include many independent and public-spirited individuals who influence national policy. Thus, even in the current reign, the will of that body often restrains the monarch’s preferences regarding both people and policies. So, while it’s possible that the executive could sometimes sway some senators, the notion that he could generally corrupt the entire body is forced and improbable. A fair-minded observer of human nature, one who neither flatters its virtues nor exaggerates its vices, will have sufficient confidence in the Senate’s integrity to be convinced not only that the executive will not be able to corrupt or sway a majority, but that requiring Senate cooperation in appointments will be a significant and healthy restraint on that official’s conduct. The Senate’s integrity is not the only safeguard; the Constitution includes additional protections against executive influence in the legislature: it declares, “No senator or representative shall during the time for which he was elected, be appointed to any civil office under the United States, which shall have been created, or the emoluments whereof shall have been increased, during such time; and no person, holding any office under the United States, shall be a member of either house during his continuance in office.”

PUBLIUS

## FEDERALIST No. 77. The Appointing Power Continued and Other Powers of the Executive Considered.

### From The Independent Journal. Wednesday, April 2, 1788.

HAMILTON

To the People of the State of New York:

It has been mentioned that one of the benefits expected from the Senate’s involvement in appointments is that it will contribute to the stability of the administration. The Senate’s consent would be necessary both to remove and to appoint. Therefore, a change of Chief Magistrate would not cause as sweeping or as great a change in government officials as might be expected if he alone controlled appointments. When a person in any position has proven his fitness for it, a new President would hesitate to replace him with someone more agreeable, fearing the Senate’s opposition could block the move and bring some discredit upon himself. Those who best understand the importance of a stable administration will value a system that ties the tenure of public officials to the approval or disapproval of that body (the Senate), which—because of its own stability—will probably be less fickle than any other part of government.

On this cooperation between the Senate and the President regarding appointments, it has sometimes been claimed that it would give the President undue influence over the Senate; at other times, the opposite has been asserted—a strong sign that neither argument is true.

To properly state the first suggestion is to refute it. It argues: the President would have excessive influence over the Senate because the Senate would have the power to restrain him. This is obviously contradictory. There is no doubt that the President possessing the entire appointment power would make it far easier for him to dominate the Senate than merely having the power to nominate, subject to their control.

Let’s consider the reverse: “the Senate would influence the Executive.” As I’ve noted before, the vagueness of this objection makes it hard to answer directly. How is this influence supposed to operate? Concerning what issues? Influence, in this sense, must mean the ability to offer a benefit. How could the Senate benefit the President by how they exercise their veto over his nominations? If it is said they might sometimes please him by accepting a favorite appointment, even when public reasons might call for a different action, I reply that situations where the President is personally invested in the outcome would be too rare to make him truly affected by Senate compliance. The POWER to bestow honors and rewards is more likely to attract influence than the POWER to simply block them. If “influencing” the President means restraining him, that is precisely what is intended. It has already been demonstrated that this restraint would be beneficial, without negating any advantages that can come from the President acting alone. The right of nomination would provide all the (good, without the ill.)(E1) (good of that of appointment, and would in a great measure avoid its evils.)(E1)

Comparing the federal plan for appointing officers to that of our State’s constitution, the federal approach must be preferred. In the federal plan, nominating power is clearly given to the Executive. Since each nomination must be submitted to the judgment of an entire legislative branch, the details of each appointment would naturally become public; the people would easily know the roles played by the various actors. The fault for a poor nomination would rest solely with the President. The blame for rejecting a good nominee would rest entirely with the Senate, particularly since they’d be defying the Executive’s good intentions. If a bad appointment is made, both the Executive for nominating and the Senate for confirming would share in the disgrace, though to different degrees.

The opposite is true in this State. The council of appointment consists of three to five people, always including the governor. This small group, operating privately, hidden from public view, carries out their trust. It is known that the governor claims the right to nominate, based on ambiguous constitutional language, but how far or how he uses this right, or when he is opposed or contradicted, is unknown. Fault for bad appointments is unclear, and, for lack of a clear target, has no lasting impact. Meanwhile, an open field for intrigue exists, and any sense of responsibility is lost. The most the public knows is that the governor claims the right to nominate; that two of four members can often be swayed easily; that if some members are uncooperative, it’s often possible to sideline them by scheduling meetings at inconvenient times; and, for whatever reason, many unsuitable appointments are regularly made. Whether the governor uses his advantage to select the most qualified candidates, or instead misuses it to reward those devoted to him personally and to maintain a corrupt system of personal influence, are questions that, unfortunately, can only be speculated about.

Any council of appointment, regardless of its makeup, will be a private group where manipulation and scheming can flourish. Their numbers, without significantly increasing expenses, cannot be large enough to prevent easy collusion. Since each member will have friends and connections to promote, mutual self-interest will lead to corrupt trading of votes and deals for positions. The private preferences of one man may be easily accommodated, but to satisfy those of a dozen or twenty would result in a monopoly of the main government positions by a few families and would bring about an aristocracy or oligarchy more directly than almost any other scheme. If, to prevent office hoarding, frequent changes were made in the council’s makeup, this would produce all the damaging effects of an unpredictable administration. Such a council would also be more vulnerable to executive influence than the Senate since they are fewer in number and less visible to the public. In short, such a council, as a substitute for the convention’s plan, would add to government expense, increase favoritism and intrigue in appointments, reduce the stability of the administration, and weaken safeguards against excessive Executive influence. Yet, such a council has been strongly advocated as a necessary amendment to the proposed Constitution.

I could not properly conclude my observations on the topic of appointments without mentioning a proposal that has found a few, though not many, supporters. I refer to the idea of including the House of Representatives in the power of making appointments. However, I will do little more than mention it, as I cannot imagine it will find favor with any significant part of the community. A body so changeable and at the same time so numerous can never be considered suitable for exercising that power. Its unsuitability becomes clear when you consider that in half a century it might consist of three or four hundred individuals. All the benefits of stability, both in the Executive and the Senate, would be lost by such a union, and it would create endless delays and complications. The example set by most of the States in their local constitutions encourages us to reject the idea.

The only remaining powers of the Executive are these: giving information to Congress on the state of the Union; recommending measures to Congress as he finds appropriate; convening Congress, or either branch, in extraordinary circumstances; adjourning them if they cannot agree on a time to adjourn; receiving ambassadors and other public ministers; faithfully executing the laws; and commissioning all the officers of the United States.

Except for some minor objections about the power to convene either house of the legislature and the power to receive ambassadors, no significant complaint has been made about this group of authorities—and, to be honest, there could hardly be a reasonable complaint. It would take an insatiable craving for criticism to invent exceptions to the parts that have been objected to. Regarding the power to convene either house of the legislature, I will simply point out that, at least for the Senate, there is a clear reason for this. Since the Senate shares power with the Executive in matters of treaties, it might often be necessary to call it together for this purpose when it would be unnecessary or improper to call the House of Representatives as well. As for the reception of ambassadors, what I have previously stated on this subject serves as a sufficient answer.

We have now completed an examination of the structure and powers of the executive branch, which I have tried to show includes, as far as republican principles allow, all that is needed for effective administration. The final question is: Does it also include what is needed for safety in a republican sense—a proper dependence on the people and a proper degree of accountability? The answer to this question has already been anticipated in discussing its other features and is clearly supported by them; especially from the President being elected once every four years by people directly chosen by the citizens for that purpose; and being always subject to impeachment, trial, removal from office, incapacity to serve in any other public role, and forfeiture of life and property through regular legal processes. But these precautions, as significant as they are, are not the only ones the convention’s plan has provided to protect public security. In the only instances where abuse of executive authority might really be feared, the Chief Magistrate of the United States would, under that plan, be subject to the control of a branch of the legislative body. What more could a thoughtful and reasonable people want?

PUBLIUS

E1. These two alternate endings of this sentence appear in different editions.

## FEDERALIST No. 78. The Judiciary Department

### From McLEAN’S Edition, New York. Wednesday, May 28, 1788

HAMILTON

To the People of the State of New York:

We now proceed to an examination of the judiciary branch of the proposed government.

When discussing the flaws of the existing Confederation, the usefulness and necessity of a federal judiciary were clearly highlighted. It is less necessary to repeat those arguments here, since the importance of the institution in principle isn’t in dispute; the only questions raised relate to how it will be formed and the scope of its power. Therefore, our observations will focus on these points.

How the judiciary is to be constituted seems to include: 1st. The method of appointing judges. 2nd. The length of time they hold office. 3rd. The distribution of judicial authority among different courts and their relationship to one another.

First, on the method of appointing judges: this is the same as that used for appointing officers of the Union in general, and has been fully discussed in the last two papers, so nothing further needs to be said here.

Second, on the length of time judges will hold office: this mostly concerns how long they remain in office, how they are supported financially, and what protections ensure their accountability.

According to the plan from the convention, all judges appointed by the United States are to serve during good behavior; this matches the most respected State constitutions, including that of this State. The fact that some opponents have objected to this is a clear symptom of their eagerness to criticize, which clouds their thinking and judgment. The standard of good behavior for continued service as a judge is certainly one of the most valuable modern improvements in government. In a monarchy, it serves as an excellent barrier against the ruler’s despotism; in a republic, it offers just as strong a protection against overreach or oppression by the representative body. In any government, it is the best way to ensure a steady, fair, and unbiased application of the laws.

Anyone who thoughtfully considers the different departments of power will see that in a government where these powers are separate, the judiciary, because of the nature of its functions, will always be the least dangerous to the political rights protected by the Constitution. It is the least able to threaten or harm those rights. The Executive not only distributes honors but also holds the community’s sword. The legislature controls the purse and writes the rules that define the duties and rights of citizens. The judiciary, in contrast, has no control over either the sword or the purse, no authority over the nation’s force or wealth, and cannot take any active measures. It may truly be said to have neither FORCE nor WILL, but only judgment, and must ultimately rely on the executive branch for the enforcement of its judgments.

This simple perspective suggests several important conclusions. It proves without doubt that the judiciary is, by far, the weakest of the three branches; that it can never successfully attack either of the other two; and that every precaution is needed to help it defend itself against their attacks. It also shows that, although the courts may occasionally cause individual injustices, the general liberty of the people can never be threatened by the judiciary, so long as it remains truly independent and separate from the legislature and the Executive. For I agree that “there is no liberty if the power of judging is not separated from the legislative and executive powers.” And finally, it proves that, while liberty has nothing to fear from the judiciary alone, it would have everything to fear if the judiciary were connected with either of the other branches. All the dangers of such a union would follow if the judiciary depended on the others, even if it appeared to be separate. Because of its inherent weakness, the judiciary is always at risk of being overpowered, intimidated, or influenced by its co-equal branches. Nothing contributes as much to its strength and independence as permanence in office, so this feature can rightly be considered an essential part of its structure and, to a great extent, the stronghold of public justice and public safety.

A fully independent judicial system is especially critical in a limited Constitution. By a limited Constitution, I mean one that sets specific exceptions to legislative authority; such as prohibiting bills of attainder, ex post facto laws, and so on. Constraints like these can only be maintained in practice by courts of justice, whose duty it is to declare void any acts contrary to the clear intent of the Constitution. Without this, all special reservations of rights or privileges would be meaningless.

Some confusion about the courts’ ability to declare legislative acts void because they violate the Constitution has arisen from the belief that this principle would make the judiciary superior to the legislative branch. It is argued that the authority to declare another’s act void must necessarily be greater than the one whose act is voided. As this idea is important in all American constitutions, a brief discussion of its basis should be welcomed.

There is no position based on clearer principles than that every act of a delegated authority, contrary to the purpose of the commission under which it is exercised, is void. No legislative act, then, contrary to the Constitution, can be valid. To deny this would be to claim that the agent is greater than the principal; that the servant is above the master; that the representatives of the people are superior to the people themselves; that those acting by delegated powers may do not only what those powers do not authorize, but even what they explicitly forbid.

If it is argued that the legislative body are themselves the constitutional judges of their own powers, and that the interpretation they put upon them is final for the other branches, it can be answered that this cannot be naturally presumed when it is not stated in any specific provision in the Constitution. It is unreasonable to suppose that the Constitution intended to allow the people’s representatives to substitute their own will for that of the people. It's far more rational to suppose that the courts were intended to act as an intermediary body between the people and the legislature, intended, among other things, to keep the latter within the limits assigned to its authority. The interpretation of laws is properly and especially the domain of the courts. A constitution is, in fact, and must be regarded by the judges as fundamental law. It therefore belongs to them to determine its meaning, as well as the meaning of any specific act from the legislative body. If there is an irreconcilable conflict between the two, the one with superior obligation and validity should naturally be preferred; in other words, the Constitution should be preferred over a statute, the will of the people over the will of their agents.

This conclusion does not suggest a superiority of judicial over legislative power. It simply assumes that the power of the people is above both; and that when the will of the legislature, stated in its statutes, is opposed to the will of the people, established in the Constitution, judges should follow the latter. They are to govern their decisions by the fundamental laws, rather than those that are not fundamental.

This use of judicial discretion in choosing between two contradictory laws is demonstrated in a familiar example. It often happens that two statutes exist at the same time, in whole or in part, conflicting with each other, and neither includes any repealing clause. In such a case, it is the role of the courts to clarify and define their meaning and effect. As far as possible, through fair construction, these laws should be reconciled; where that isn't possible, it becomes necessary to give effect to one and exclude the other. The rule established in courts for deciding their relative validity is that the later law in time takes precedence over the earlier. But this is just a rule of construction, not based on positive law, but on the nature and logic of the matter. It is not imposed by legislative direction, but adopted by the courts themselves, as suitable to truth and right conduct, for their guidance as law interpreters. Courts thought it reasonable that, between conflicting acts of EQUAL authority, the one most recently enacted should take precedence.

But when it comes to conflicting acts of a superior and a subordinate authority, of an original and a derivative power, the nature and logic of the situation suggest the opposite rule. They show us that the earlier act of a superior should be preferred to a later act of an inferior and subordinate authority. Thus, whenever a particular statute contradicts the Constitution, the judicial courts have the duty to uphold the Constitution and disregard the contradictory statute.

It does not help to argue that the courts, under the pretense of a conflict, might substitute their own preferences for the constitutional intentions of the legislature. This could just as easily happen with conflicting statutes, or in any judgment of a single statute. The courts must declare the meaning of the law; and if they were to choose to exercise WILL instead of JUDGMENT, the result would be the same: their preferences would override those of the legislative body. If this argument proves anything, it would prove that there should be no judges separate from the legislature.

If, then, the courts of justice are to be considered as the safeguards of a limited Constitution against legislative overreach, this consideration provides a strong argument for permanent judicial appointments, since nothing contributes more to the independent spirit in judges that is essential to carrying out such a challenging duty.

This independence is equally necessary to protect the Constitution and the rights of individuals from the effects of negative public moods, which the manipulations of cunning individuals or the impact of particular events sometimes spread among the people themselves. Although these feelings soon give way to better information and more deliberate reflection, in the meantime they can cause dangerous innovations in government, and serious oppression of minority groups in the community. Although I believe that supporters of the proposed Constitution will never join its opponents(3) in questioning that fundamental republican principle that allows the people to change or abolish their Constitution when it no longer serves their happiness, it does not follow that their representatives, acting on a temporary impulse of a majority, would be justified in violating the existing Constitution; nor that courts would have a greater obligation to ignore such violations than they would if ordered by the legislative body itself. Until the people have, through a formal and authoritative act, annulled or changed the established form, it remains binding on them both collectively and individually; and no assumption, or even certain knowledge, of their opinions can justify their representatives departing from it before such an act. But it is clear that it would require uncommon courage in judges to do their duty as faithful guardians of the Constitution when legislative violations are driven by the majority's will.

But it is not only in regard to violations of the Constitution that judicial independence is an essential safeguard against the results of public discontent. Sometimes these discontents result only in harm to the private rights of certain classes of citizens, through unjust and biased laws. Here too, the firmness of the judicial bench is of great importance in reducing the harshness and limiting the impact of such laws. This provides a check on the legislative body when passing such laws, as they know that the courts' reluctance to support injustice may hinder their success; they are thus forced, partly because of their own unjust motives, to moderate their plans. This is a factor that may influence the character of our governments more than most people realize. The benefits of judicial integrity and restraint have already been felt in more than one State; and although this may have disappointed those with selfish hopes, it must have attracted the respect and praise of all virtuous and impartial observers. Thoughtful people of every type should value whatever helps foster or strengthen this temperament in the courts: since no one can be sure he might not tomorrow be harmed by an injustice he may benefit from today. And everyone now must realize that the inevitable result of a spirit of injustice is to undermine the foundations of both public and private trust, and to replace it with universal suspicion and hardship.

That unwavering and consistent commitment to the rights of the Constitution and of individuals, which we see as essential in the courts of justice, certainly cannot be expected from judges who hold their offices temporarily. Periodic appointments, no matter how arranged or by whom, would, in one way or another, destroy their necessary independence. If the appointment power belonged to the Executive or the legislature, there would be a risk of improper deference to whichever branch held the power; if it belonged to both, judges would hesitate to risk offending either; if to the people, or to persons chosen for that purpose, there would be too much pressure to seek popularity, making it unlikely that only the Constitution and the laws would be considered.

There is another, even weightier, reason for the permanence of judicial offices, derived from the nature of their required qualifications. It has often enough been said, quite accurately, that a large code of laws is one of the drawbacks necessarily tied to the advantages of a free government. To prevent arbitrary judgments in the courts, it is essential that judges are bound by strict rules and precedents, which outline their duty in each case; and it is clear, given the variety of disputes caused by human folly and wickedness, that the collection of these precedents must inevitably grow very large and demand long, diligent study. Thus, there are few in society with enough legal expertise to qualify as judges. And, adjusting for human nature’s tendencies, even fewer combine integrity with the necessary knowledge. These points make clear that the government has little choice between truly capable candidates; and that a temporary office term, which would naturally discourage such candidates from leaving profitable private practice to serve as judges, would tend to put justice in the hands of those less able and less qualified to administer it properly. In the present circumstances of this country, and likely for a long time ahead, the disadvantages here are greater than may become apparent at first glance; but still, they are less serious than those that arise in other aspects of this subject.

All in all, there can be little doubt that the convention acted wisely in following the example of those constitutions which made good behavior the standard for the duration of judicial offices; and that far from being criticized for this, their plan would have been inexcusable without this key part of good government. Britain’s experience provides great evidence of this institution’s excellence.

PUBLIUS

1. The celebrated Montesquieu, speaking of them, says: “Of the three powers above mentioned, the judiciary is next to nothing.”—Spirit of Laws. Vol. I, page 186.

2. Idem, page 181.

3. See Protest of the Minority of the Convention of Pennsylvania, Martin’s Speech, etc.

## FEDERALIST No. 79. The Judiciary Continued

### From MCLEAN’s Edition, New York. Wednesday, May 28, 1788

HAMILTON

To the People of the State of New York:

NEXT to permanency in office, nothing contributes more to the independence of judges than a fixed provision for their support. The same observation made regarding the President is equally applicable here. In general, having control over someone’s livelihood equates to control over their will. We can never expect a true separation between the judicial and legislative powers in any system where the judiciary remains financially dependent on the occasional appropriations of the legislature. In every State, thoughtful advocates for good government have regretted the lack of precise and explicit safeguards on this matter within their constitutions. Some States have indeed declared that permanent(1) salaries should be established for judges; but in certain cases, this wording has not been sufficiently clear to prevent legislative evasions. It has become evident that something more definite and unequivocal is necessary. Therefore, the plan of the convention provides that the judges of the United States “shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office.”

All things considered, this is the most suitable provision that could have been designed. It is easy to understand that fluctuations in the value of money and changes in society make a fixed rate of compensation in the Constitution impractical. What may seem excessive today could, in fifty years, be inadequate. Therefore, it was necessary to allow the legislature to adjust salaries according to changing circumstances, but under a restriction that prevents them from worsening an individual judge’s situation once in office. In this way, a judge knows exactly where he stands and cannot be discouraged from fulfilling his duty out of fear that his position will become less favorable. The quoted clause combines these advantages. Judicial salaries may be changed as necessary, yet never reduced for any judge who is already in office. Note the convention made a distinction between the President’s compensation and that of the judges. The President’s can neither be increased nor diminished; judges’ compensation can only not be diminished. This difference likely stems from the difference in the duration of the offices. Since the President serves only four years, a suitable salary set at the start of the term will likely remain appropriate throughout. But for judges, who—if they conduct themselves appropriately—serve for life, it may well happen, especially in the early years of government, that an adequate salary at the time of appointment becomes insufficient over time.

This provision for judges’ support shows every sign of prudence and effectiveness; and it may be confidently said that, combined with the permanence of office, it offers a better prospect for judicial independence than what is found in any State constitution regarding their own judges.

The safeguards for their accountability are found in the rules regarding impeachments. Judges may be impeached for misconduct by the House of Representatives, tried by the Senate, and, if convicted, may be removed from office and barred from holding any other. This is the only measure compatible with the necessary independence of the judiciary, and it is the only such provision in our own Constitution for our own judges.

The lack of a provision to remove judges due to incapacity has drawn criticism. However, any thoughtful person will recognize that such a provision would either be rarely used or would be more likely to be abused than to serve a good purpose. There is, I believe, no way to accurately measure the capacities of the mind. Any attempt to define the line between ability and inability would more often reflect personal and political loyalties or rivalries than serve the interests of justice or the public good. In most cases, apart from clear insanity, such judgments would be arbitrary; and insanity, even without a formal provision, can safely be considered a practical disqualification.

To avoid investigations that are bound to be vague and risky, the constitution of New York has set a specific age as the measure of inability—no person may be a judge past sixty. I believe most people now disapprove of this rule. There is no position for which this is less suitable than that of a judge. Mental faculties for analysis and comparison generally remain strong well beyond that age in those who survive it; and given how few live past the height of their intellect, and how unlikely it is that a large portion of the bench would be affected at the same time, we can conclude that such age limits have little to recommend them. In a republic, where fortunes are usually modest and pensions uncommon, dismissing men from positions they have long and faithfully served—and which they need for their livelihood—when it is too late to seek another occupation, should have a better justification than the imagined threat of a bench filled with elderly judges.

PUBLIUS

1. See Constitution of Massachusetts, Chapter 2, Section 1, Article 13.

## FEDERALIST No. 80. The Powers of the Judiciary

### From McLEAN’s Edition, New York. Wednesday, May 28, 1788.

HAMILTON

To the People of the State of New York:

To judge accurately the proper scope of federal courts, we must first consider what their proper purposes are.

It hardly seems open to dispute that the judiciary authority of the Union should extend to the following kinds of cases: 1st, all cases arising out of the laws of the United States, passed under their just and constitutional legislative powers; 2nd, all cases involving the execution of explicit provisions in the articles of Union; 3rd, all cases in which the United States are a party; 4th, all those involving the PEACE of the CONFEDERACY, whether concerning relations between the United States and foreign nations or between the States themselves; 5th, all cases originating on the high seas and falling under admiralty or maritime jurisdiction; and, finally, all those in which the State courts cannot be expected to be impartial and unbiased.

The first point rests on the obvious truth that there must always be a constitutional way to enforce constitutional provisions. For example, restrictions on State legislatures are pointless without some constitutional means to ensure compliance. The States, in the proposed plan, are prohibited from doing many things—some conflicting with the Union’s interests, others with principles of good government. Levying duties on imports and issuing paper money are examples of each. No sensible person would believe these bans would be strictly observed without an effective government power to restrain or correct infractions. This power must either be a direct federal veto of State laws, or an authority in federal courts to override those that clearly violate the articles of Union. I see no third option. The convention seemed to favor the latter, and I assume this will be more acceptable to the States.

Regarding the second point, no further explanation can make it clearer. If there are political truths beyond question, the necessity for the judicial power of a government to match its legislative power is among them. The simple requirement for consistent interpretation of national laws determines the issue. Thirteen separate courts of final appeal over the same causes, under the same laws, would create government chaos; only contradiction and confusion could result.

Even less need be said about the third point. Disputes between the nation and its citizens are rightly the province of national courts. Any other arrangement would defy reason, precedent, and propriety.

The fourth point is based on the plain idea that the peace of the WHOLE should not be in the hands of a PART. The Union will certainly be answerable to foreign nations for the actions of its members. Responsibility for injury must always come with power to prevent it. Since the denial or distortion of justice by a court is properly counted among the just causes of war, the federal judiciary should have jurisdiction over all cases involving foreign citizens. This is as vital to maintaining public faith as it is for securing public tranquility. One might try to distinguish between cases based on treaties or the law of nations and those based purely on local law, giving the former to federal jurisdiction and the latter to States. But it is at best uncertain whether an unjust decision against a foreigner—even in a purely local matter—could go uncorrected without causing offense to his sovereign, just like one breaching a treaty or the law of nations. Still more problematic, it would be nearly impossible in practice to consistently distinguish between the two kinds of cases. Since so many cases involving foreigners concern national questions, it is much safer and more practical to refer all their cases to the national courts.

The power to decide cases between two States, between one State and citizens of another, and between citizens of different States, may be as essential to the Union’s peace as any point covered so far. History gives us a terrible example in the violence and private wars that plagued Germany before Emperor Maximilian established the Imperial Chamber near the end of the fifteenth century. That institution had great success in restoring order to the empire. It was a court with final authority over all disputes among the German States.

Even the earlier, less effective American system included a way to resolve boundary disputes between States under federal authority. But many other sources besides conflicting borders can spark conflict among Union members. We have already seen some in our own experience. You may guess I refer to the fraudulent laws passed in too many States. Although the new Constitution has some specific safeguards to prevent the return of such abuses, it is reasonable to fear that the same spirit may create new forms of mischief not anticipated or specifically guarded against. Any practice that threatens peace between the States is a proper object of federal supervision and control.

It may be considered the foundation of the Union that “the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.” If it is a fair principle that every government should have the power to enforce its own rules by its own authority, then, to maintain the equality of privileges and immunities to which the citizens of the Union are entitled, the national judiciary ought to preside in all cases where one State or its citizens are opposed to another State or its citizens. To ensure that such an essential provision cannot be evaded or undermined, it is necessary that its interpretation be entrusted to a tribunal which, having no local alliances, is most likely to be impartial among the different States and their citizens. This tribunal, whose existence is owed to the Union, will be less likely to show any bias contrary to the principles on which it is based.

The fifth point requires little discussion. Even the most ardent supporters of State authority have not, so far, shown any inclination to deny the national judiciary jurisdiction over maritime cases. Such cases generally depend on international law, and so often affect the rights of foreigners, that they fall within considerations relating to public peace. The most important of them are, under the current Confederation, already under federal jurisdiction.

The appropriateness of the national courts’ involvement in cases where State courts cannot be assumed to be impartial is self-evident. No person should judge his own case or any matter in which he has any interest or bias. This principle carries significant weight in designating the federal courts as the appropriate venue for resolving disputes between different States and their citizens. It should have the same effect regarding certain cases between citizens of the same State. Claims to land under grants from different States, based on conflicting boundary claims, are such cases. Neither of the States' courts could be expected to be free of bias. Their laws may have already decided the issue, obliging the courts to rule in favor of the grants provided by their own State. Even if this were not the case, it would be natural for judges, as people, to have a strong preference for their own government's claims.

Having thus outlined and discussed the principles that should guide the structure of the federal judiciary, we will now assess, according to these principles, the specific powers with which, under the convention's plan, it will be endowed. Its jurisdiction is to include “all cases in law and equity arising under the Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; all cases affecting ambassadors, other public ministers, and consuls; all cases of admiralty and maritime jurisdiction; controversies to which the United States is a party; controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State regarding lands under grants of different States; and between a State or its citizens and foreign states, citizens, or subjects.” This forms the complete body of the Union's judicial authority. Let us now review it in detail. It is, therefore, to extend:

First. To all cases in law and equity arising under the Constitution and the laws of the United States. This corresponds with the first two types of cases previously identified as properly belonging to the jurisdiction of the United States. Some have asked what is meant by “cases arising under the Constitution” as opposed to those “arising under the laws of the United States.” The distinction has been explained already. All restrictions on the authority of State legislatures are examples. For instance, they are not allowed to issue paper money, and this prohibition comes from the Constitution, not from any law of the United States. Should paper money nevertheless be issued, disputes about it would fall under cases arising from the Constitution, not from the laws of the United States in the usual sense. This serves as an example for the whole.

It has also been asked why the term “equity” is needed. What kinds of equitable cases might arise from the Constitution and laws of the United States? There is almost no dispute between individuals that might not involve aspects of fraud, accident, trust, or hardship, making it an issue for equitable as well as legal jurisdiction, as the distinction is understood and applied in several States. For example, courts of equity have the specific role of remedying hard bargains: these are contracts where, though no direct fraud or deceit occurs to invalidate them in a court of law, some undue and unfair advantage may have been taken of one party’s needs or misfortunes, which a court of equity would not allow. In such situations, particularly when foreigners are involved, it would be impossible for the federal courts to ensure justice without an equitable as well as a legal jurisdiction. Agreements to transfer lands claimed under grants from different States may offer another example of the need for equitable jurisdiction in federal courts. This reasoning may not be as obvious in States where the formal distinction between LAW and EQUITY is not maintained, but it is clear in this State, where it appears in daily practice.

The judiciary authority of the Union is also to extend:

Second. To treaties made, or to be made, under the authority of the United States, and to all cases affecting ambassadors, other public ministers, and consuls. These fall into the fourth category of cases enumerated, given how closely they relate to preserving national peace.

Third. To cases of admiralty and maritime jurisdiction. These represent the fifth identified class of cases justly under national court jurisdiction.

Fourth. To controversies in which the United States is a party. These make up the third class.

Fifth. To controversies between two or more States; between a State and citizens of another State; between citizens of different States. These fall under the fourth class and share some characteristics with the previous one.

Sixth. To cases between citizens of the same State over land claims based on grants from different States. These fall into the last class and are the only examples where the proposed Constitution specifically envisions the federal courts handling cases between citizens of the same State.

Seventh. To cases between a State or its citizens and foreign States, citizens, or subjects. These have already been explained as belonging to the fourth identified class and have been shown to be especially suitable for national judicial oversight.

From this review of the specific powers of the federal judiciary, as set out in the Constitution, it appears that they are all consistent with the principles that ought to have guided that department’s structure and were necessary to perfect the system. If some minor inconveniences arise from including any of them in the plan, remember that the national legislature will have plenty of authority to make exceptions and to set the rules needed to resolve or eliminate such issues. The mere possibility of special problems should never be seen, by an informed mind, as a strong objection to a general principle that is designed to prevent general problems and bring about general benefits.

PUBLIUS

## FEDERALIST No. 81. The Judiciary Continued, and the Distribution of the Judicial Authority.

### From McLEAN’s Edition, New York. Wednesday, May 28, 1788.

HAMILTON

To the People of the State of New York:

LET US now return to the division of judicial authority among different courts, and their relationships to each other.

“The judicial power of the United States is” (by the plan of the convention) “to be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish.”(1)

That there ought to be one court of supreme and final jurisdiction, is a proposition which is not likely to be contested. The reasons for it have been assigned in another place, and are too obvious to need repetition. The only question that seems to have been raised concerning it, is whether it ought to be a distinct body or a branch of the legislature. The same contradiction is observable in regard to this matter which has been remarked in several other cases. The very men who object to the Senate as a court of impeachments, on the ground of an improper intermixture of powers, advocate, by implication at least, the propriety of vesting the ultimate decision of all causes, in the whole or in a part of the legislative body.

The arguments, or rather suggestions, upon which this charge is founded, are to this effect: “The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the spirit of the Constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is as unprecedented as it is dangerous. In Britain, the judicial power, in the last resort, resides in the House of Lords, which is a branch of the legislature; and this part of the British government has been imitated in the State constitutions in general. The Parliament of Great Britain, and the legislatures of the several States, can at any time rectify, by law, the exceptionable decisions of their respective courts. But the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless.” This, upon examination, will be found to be made up altogether of false reasoning upon misconceived fact.

In the first place, there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of the convention, but from the general theory of a limited Constitution; and as far as it is true, is equally applicable to most, if not to all the State governments. There can be no objection, therefore, on this account, to the federal judicature which will not lie against the local judicatures in general, and which will not serve to condemn every constitution that attempts to set bounds to legislative discretion.

But perhaps the force of the objection may be thought to consist in the particular organization of the Supreme Court; in its being composed of a distinct body of magistrates, instead of being one of the branches of the legislature, as in the government of Great Britain and that of the State. To insist upon this point, the authors of the objection must renounce the meaning they have labored to annex to the celebrated maxim, requiring a separation of the departments of power. It shall, nevertheless, be conceded to them, agreeably to the interpretation given to that maxim in the course of these papers, that it is not violated by vesting the ultimate power of judging in a PART of the legislative body. But though this be not an absolute violation of that excellent rule, yet it verges so nearly upon it, as on this account alone to be less eligible than the mode preferred by the convention. From a body which had even a partial agency in passing bad laws, we could rarely expect a disposition to temper and moderate them in the application. The same spirit which had operated in making them, would be too apt in interpreting them; still less could it be expected that men who had infringed the Constitution in the character of legislators, would be disposed to repair the breach in the character of judges. Nor is this all. Every reason which recommends the tenure of good behavior for judicial offices, militates against placing the judiciary power, in the last resort, in a body composed of men chosen for a limited period. There is an absurdity in referring the determination of causes, in the first instance, to judges of permanent standing; in the last, to those of a temporary and mutable constitution. And there is a still greater absurdity in subjecting the decisions of men, selected for their knowledge of the laws, acquired by long and laborious study, to the revision and control of men who, for want of the same advantage, cannot but be deficient in that knowledge. The members of the legislature will rarely be chosen with a view to those qualifications which fit men for the stations of judges; and as, on this account, there will be great reason to apprehend all the ill consequences of defective information, so, on account of the natural propensity of such bodies to party divisions, there will be no less reason to fear that the pestilential breath of faction may poison the fountains of justice. The habit of being continually marshalled on opposite sides will be too apt to stifle the voice both of law and of equity.

These considerations teach us to applaud the wisdom of those States who have committed the judicial power, in the last resort, not to a part of the legislature, but to distinct and independent bodies of men. Contrary to the supposition of those who have represented the plan of the convention, in this respect, as novel and unprecedented, it is but a copy of the constitutions of New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia; and the preference which has been given to those models is highly to be commended.

It is not true, in the second place, that the Parliament of Great Britain, or the legislatures of the particular States, can rectify the exceptionable decisions of their respective courts, in any other sense than might be done by a future legislature of the United States. The theory, neither of the British, nor the State constitutions, authorizes the revisal of a judicial sentence by a legislative act. Nor is there any thing in the proposed Constitution, more than in either of them, by which it is forbidden. In the former, as well as in the latter, the impropriety of the thing, on the general principles of law and reason, is the sole obstacle. A legislature, without exceeding its province, cannot reverse a determination once made in a particular case; though it may prescribe a new rule for future cases. This is the principle, and it applies in all its consequences, exactly in the same manner and extent, to the State governments, as to the national government now under consideration. Not the least difference can be pointed out in any view of the subject.

It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments.

Having now examined, and, I trust, removed the objections to the distinct and independent organization of the Supreme Court, I proceed to consider the propriety of the power of constituting inferior courts,(2) and the relations which will subsist between these and the former.

The power of constituting inferior courts is evidently calculated to obviate the necessity of having recourse to the Supreme Court in every case of federal cognizance. It is intended to enable the national government to institute or authorize, in each State or district of the United States, a tribunal competent to the determination of matters of national jurisdiction within its limits.

But why, it is asked, might not the same purpose have been accomplished by the instrumentality of the State courts? This admits of different answers. Though the fitness and competency of those courts should be allowed in the utmost latitude, yet the substance of the power in question may still be regarded as a necessary part of the plan, if it were only to empower the national legislature to commit to them the cognizance of causes arising out of the national Constitution. To confer the power of determining such causes upon the existing courts of the several States, would perhaps be as much “to constitute tribunals,” as to create new courts with the like power. But ought not a more direct and explicit provision to have been made in favor of the State courts? There are, in my opinion, substantial reasons against such a provision: the most discerning cannot foresee how far the prevalency of a local spirit may be found to disqualify the local tribunals for the jurisdiction of national causes; whilst every man may discover, that courts constituted like those of some of the States would be improper channels of the judicial authority of the Union. State judges, holding their offices during pleasure, or from year to year, will be too little independent to be relied upon for an inflexible execution of the national laws. And if there was a necessity for confiding the original cognizance of causes arising under those laws to them there would be a correspondent necessity for leaving the door of appeal as wide as possible. In proportion to the grounds of confidence in, or distrust of, the subordinate tribunals, ought to be the facility or difficulty of appeals. And well satisfied as I am of the propriety of the appellate jurisdiction, in the several classes of causes to which it is extended by the plan of the convention, I should consider every thing calculated to give, in practice, an unrestrained course to appeals, as a source of public and private inconvenience.

I am not sure, but that it will be found highly expedient and useful, to divide the United States into four or five or half a dozen districts; and to institute a federal court in each district, in lieu of one in every State. The judges of these courts, with the aid of the State judges, may hold circuits for the trial of causes in the several parts of the respective districts. Justice through them may be administered with ease and despatch; and appeals may be safely circumscribed within a narrow compass. This plan appears to me at present the most eligible of any that could be adopted; and in order to it, it is necessary that the power of constituting inferior courts should exist in the full extent in which it is to be found in the proposed Constitution.

These reasons seem sufficient to satisfy a candid mind, that the want of such a power would have been a great defect in the plan. Let us now examine in what manner the judicial authority is to be distributed between the supreme and the inferior courts of the Union.

The Supreme Court is to be invested with original jurisdiction, only “in cases affecting ambassadors, other public ministers, and consuls, and those in which A STATE shall be a party.” Public ministers of every class are the immediate representatives of their sovereigns. All questions in which they are concerned are so directly connected with the public peace, that, as well for the preservation of this, as out of respect to the sovereignties they represent, it is both expedient and proper that such questions should be submitted in the first instance to the highest judicatory of the nation. Though consuls have not in strictness a diplomatic character, yet as they are the public agents of the nations to which they belong, the same observation is in a great measure applicable to them. In cases in which a State might happen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal.

Though it may rather be a digression from the immediate subject of this paper, I shall take occasion to mention here a supposition which has excited some alarm upon very mistaken grounds. It has been suggested that an assignment of the public securities of one State to the citizens of another, would enable them to prosecute that State in the federal courts for the amount of those securities; a suggestion which the following considerations prove to be without foundation.

It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of State sovereignty were discussed in considering the article of taxation, and need not be repeated here. A recurrence to the principles there established will satisfy us, that there is no color to pretend that the State governments would, by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action, independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident, it could not be done without waging war against the contracting State; and to ascribe to the federal courts, by mere implication, and in destruction of a pre-existing right of the State governments, a power which would involve such a consequence, would be altogether forced and unwarrantable.

Let us resume the train of our observations. We have seen that the original jurisdiction of the Supreme Court would be confined to two classes of causes, and those of a nature rarely to occur. In all other cases of federal cognizance, the original jurisdiction would appertain to the inferior tribunals; and the Supreme Court would have nothing more than an appellate jurisdiction, “with such exceptions and under such regulations as the Congress shall make.”

The propriety of this appellate jurisdiction has been scarcely called in question in regard to matters of law; but the clamors have been loud against it as applied to matters of fact. Some well-intentioned men in this State, deriving their notions from the language and forms which obtain in our courts, have been induced to consider it as an implied supersedure of the trial by jury, in favor of the civil-law mode of trial, which prevails in our courts of admiralty, probate, and chancery. A technical sense has been affixed to the term “appellate,” which, in our law parlance, is commonly used in reference to appeals in the course of the civil law. But if I am not misinformed, the same meaning would not be given to it in any part of New England. There an appeal from one jury to another, is familiar both in language and practice, and is even a matter of course, until there have been two verdicts on one side. The word “appellate,” therefore, will not be understood in the same sense in New England as in New York, which shows the impropriety of a technical interpretation derived from the jurisprudence of any particular State. The expression, taken in the abstract, denotes nothing more than the power of one tribunal to review the proceedings of another, either as to the law or fact, or both. The mode of doing it may depend on ancient custom or legislative provision (in a new government it must depend on the latter), and may be with or without the aid of a jury, as may be judged advisable. If, therefore, the re-examination of a fact once determined by a jury, should in any case be admitted under the proposed Constitution, it may be so regulated as to be done by a second jury, either by remanding the cause to the court below for a second trial of the fact, or by directing an issue immediately out of the Supreme Court.

But it does not follow that the re-examination of a fact once ascertained by a jury, will be permitted in the Supreme Court. Why may not it be said, with the strictest propriety, when a writ of error is brought from an inferior to a superior court of law in this State, that the latter has jurisdiction of the fact as well as the law? It is true it cannot institute a new inquiry concerning the fact, but it takes cognizance of it as it appears upon the record, and pronounces the law arising upon it.(3) This is jurisdiction of both fact and law; nor is it even possible to separate them. Though the common-law courts of this State ascertain disputed facts by a jury, yet they unquestionably have jurisdiction of both fact and law; and accordingly when the former is agreed in the pleadings, they have no recourse to a jury, but proceed at once to judgment. I contend, therefore, on this ground, that the expressions, “appellate jurisdiction, both as to law and fact,” do not necessarily imply a re-examination in the Supreme Court of facts decided by juries in the inferior courts.

The following train of ideas may well be imagined to have influenced the convention, in relation to this particular provision. The appellate jurisdiction of the Supreme Court (it may have been argued) will extend to causes determinable in different modes, some in the course of the COMMON LAW, others in the course of the CIVIL LAW. In the former, the revision of the law only will be, generally speaking, the proper province of the Supreme Court; in the latter, the re-examination of the fact is agreeable to usage, and in some cases, of which prize causes are an example, might be essential to the preservation of the public peace. It is therefore necessary that the appellate jurisdiction should, in certain cases, extend in the broadest sense to matters of fact. It will not answer to make an express exception of cases which shall have been originally tried by a jury, because in the courts of some of the States all causes are tried in this mode(4); and such an exception would preclude the revision of matters of fact, as well where it might be proper, as where it might be improper. To avoid all inconveniencies, it will be safest to declare generally, that the Supreme Court shall possess appellate jurisdiction both as to law and fact, and that this jurisdiction shall be subject to such exceptions and regulations as the national legislature may prescribe. This will enable the government to modify it in such a manner as will best answer the ends of public justice and security.

This interpretation, at any rate, removes any doubt that the supposed abolition of trial by jury through this provision is mistaken and untrue. The legislature of the United States would certainly have full authority to provide that, in appeals to the Supreme Court, there should be no re-examination of facts when they have already been tried by juries in the original cases. This would undoubtedly be a permitted exception; but if, for reasons already mentioned, it seems too broad, it could be limited to only those cases that are decided at common law through jury trials.

To sum up the observations made so far regarding the authority of the judicial branch: it has been carefully confined to those cases that are clearly appropriate for national courts; within the distribution of this authority, only a small amount of original jurisdiction has been reserved for the Supreme Court, with the rest left to lower courts; the Supreme Court will have appellate jurisdiction, both regarding law and fact, in all referred cases, all subject to whatever exceptions and regulations are considered necessary; this appellate jurisdiction does not abolish jury trials in any case; and as long as the national government acts with ordinary prudence and integrity, we will gain the solid benefits of the proposed judiciary without suffering any of the inconveniences predicted by its critics.

PUBLIUS

1. Article 3, Sec. 1.

2. This power has been absurdly described as intended to eliminate all county courts in the various States, which are commonly referred to as inferior courts. But the wording of the Constitution says, to constitute “tribunals INFERIOR TO THE SUPREME COURT”; and the obvious purpose of this provision is to enable the creation of local courts, under the Supreme Court, either within States or in larger districts. It is ridiculous to imagine that county courts were meant to be included.

3. This word is formed from JUS and DICTIO, juris dictio, or speaking and pronouncing the law.

4. I maintain that the States will share concurrent jurisdiction with the lower federal courts in many cases involving federal matters, as I will explain in my next paper.

## FEDERALIST No. 82. The Judiciary Continued.

### From McLEAN’s Edition, New York. Wednesday, May 28, 1788

HAMILTON

To the People of the State of New York:

The creation of a new government, no matter how carefully or wisely constructed, will inevitably give rise to complex and subtle questions; and these, in particular, should be expected when establishing a constitution based on the full or partial incorporation of several distinct sovereign states. Only time can mature and perfect such a complex system, clarify the meaning of its parts, and harmoniously fit them together as a single consistent WHOLE.

Such questions, as expected, have already arisen regarding the plan put forward by the convention, especially concerning the judicial branch. The main ones deal with the position of State courts in relation to those cases that are to be handled by the federal courts. Will federal jurisdiction be exclusive, or will those courts keep concurrent jurisdiction? If the latter, what will their relationship be to the national courts? These are questions raised by thoughtful individuals and they certainly deserve consideration.

Principles set forth in a previous essay(1) teach us that the States will keep all existing powers not exclusively assigned to the federal government; and that exclusive assignment exists only in three cases: where exclusive authority is explicitly given to the Union; or when authority is given to the Union and the States are expressly forbidden the same authority; or when the Union is granted an authority that is inherently incompatible with the States retaining a similar one. While these principles may not be quite as forceful for the judicial as for the legislative power, I believe they are mostly valid for both. Therefore, I conclude that State courts will retain the jurisdiction they currently have unless it is clearly removed by one of the specified methods.

The only passage in the proposed Constitution that might seem to restrict federal cases to federal courts is this: “THE JUDICIAL POWER of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress shall from time to time ordain and establish.” This could be interpreted to mean that only the Supreme and lower courts of the United States have the authority to decide those cases their power covers; or it could simply mean that the organs of the national judiciary will include one Supreme Court and as many lower courts as Congress chooses to create; or, in other words, that the United States will exercise their judicial authority through a Supreme Court and a certain number of lower courts set up by them. The first interpretation excludes, the last allows, concurrent jurisdiction with State courts; and since the first would implicitly take away State power, the last seems to me the most natural and defensible reading.

However, this idea of concurrent jurisdiction clearly applies only to types of cases over which State courts already have authority. It's not as obvious in relation to cases that might arise from, and be unique to, the new Constitution; for denying State courts jurisdiction in such cases can't be seen as a restriction of a pre-existing power. I do not claim, therefore, that Congress may not, in legislating on its enumerated subjects, give exclusive jurisdiction over certain cases to the federal courts if that seems best; but I say State courts will lose none of their original jurisdiction, beyond the possibility of an appeal; and I even believe that, unless Congress expressly excludes them in future national legislation, State courts will naturally take up cases resulting from such legislation. I base this on the nature of judicial power, and the general logic of the system. The judiciary of every government goes beyond its own local or municipal laws, and in civil cases considers all disputes between parties within its jurisdiction, even if the issue relates to the laws of distant lands. Cases involving Japanese law may appear before our courts as readily as those involving New York law. When we remember, on top of this, that State and national governments are, as they actually are, related systems and parts of ONE WHOLE, the conclusion seems clear: State courts would have concurrent jurisdiction in all cases under the laws of the Union, unless explicitly prohibited.

This leads to another question: In cases of concurrent jurisdiction, what is the relationship between the national and State courts? My answer is that an appeal would certainly be allowed from State courts to the Supreme Court of the United States. The Constitution explicitly gives appellate jurisdiction to the Supreme Court in all the listed cases of federal authority where it does not have original jurisdiction, without saying this only applies to lower federal courts. Only the subjects of appeal, not the courts appealed from, are mentioned. Because of this, and for logical reasons, it should be understood as applying to State courts. Either this must be so, or else the local courts must lack concurrent jurisdiction over national issues, or else the judicial power of the Union could be avoided at the whim of any plaintiff or prosecutor. Neither outcome is reasonable; the second is completely unacceptable, as it would frustrate some of the main stated goals of the proposed government and cause serious practical difficulties. Nor do I see any cause for such a belief. As I already said, the State and national systems are to be seen as ONE WHOLE. The State courts will naturally assist with the enforcement of the laws of the Union, and an appeal from them will logically go to the tribunal intended to unify the principles of national justice and decisions. The clear intent of the convention's plan is that all specified cases should, for important public reasons, be heard originally or finally by federal courts. To restrict the general wording granting appellate jurisdiction to the Supreme Court—so that it applies only to appeals from federal lower courts and not State courts—would limit the meaning of the terms, go against the intent, and violate proper interpretation.

But could an appeal be allowed from State courts to the lower federal courts? This is a further question that is even more complex. The following points support an affirmative answer. First, the plan allows Congress “to constitute tribunals inferior to the Supreme Court.”(2) It then states that “the JUDICIAL POWER of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress shall ordain and establish”; and then it specifies which cases this judicial power covers. Later, it divides the Supreme Court’s jurisdiction into original and appellate, but never defines that of the lower courts. The only details given are that such courts must be “inferior to the Supreme Court,” and cannot go beyond the limits of the federal judiciary. Whether their powers are original, appellate, or both, is left unstated. All of this appears to be left to Congress. If so, then I currently see no obstacle to allowing appeals from State courts to the lower national courts; and there are many possible advantages. This would reduce the need to create more federal courts and allow arrangements that might narrow the appellate duties of the Supreme Court. State courts could then handle more federal cases fully, and appeals—when appropriate—could be taken from State courts to federal district courts instead of the Supreme Court in many cases.

PUBLIUS

1. No. 31.

2. Sec. 8, Art. 1.

## FEDERALIST No. 83. The Judiciary Continued in Relation to Trial by Jury

### From MCLEAN’s Edition, New York. Wednesday, May 28, 1788

HAMILTON

To the People of the State of New York:

The most successful objection to the convention's plan in this State, and likely in several others, concerns the lack of a constitutional guarantee for trial by jury in civil cases. Although the misleading manner in which this objection is often raised has been repeatedly noted and exposed, it continues to appear in the conversations and writings of the opponents of the plan. The simple omission of the Constitution regarding civil cases is portrayed as a total abolition of trial by jury, and arguments based on this have been crafted to convince people that this supposed abolition is complete and universal, affecting not only every type of civil case but even criminal cases. To argue over the latter is as pointless as trying to prove the existence of matter or demonstrate propositions so self-evident that they compel belief when their meaning is clearly stated.

When it comes to civil cases, arguments hardly worth refuting have been used to support the idea that something not explicitly provided for is therefore completely abolished. Anyone with discernment can immediately see the clear difference between omission and abolition. But since the originators of this fallacy try to support it with certain legal rules of interpretation—rules they have twisted from their true meaning—it may be helpful to examine the ground they stand on.

The maxims they depend upon go like this: “A specification of particulars is an exclusion of generals,” or, “The expression of one thing is the exclusion of another.” Thus, since the Constitution establishes trial by jury in criminal cases and says nothing about civil cases, this silence is presented as an implied prohibition of jury trials in civil cases.

Legal rules of interpretation are based on common sense and are adopted by courts when interpreting laws. The true test of their correct application is whether they conform to this basis. With that in mind, let me ask: is it consistent with common sense to suppose that requiring the legislature to commit criminal trials to juries takes away its right to authorize or permit such trials in other types of cases? Is it natural to think that commanding one thing is a prohibition of another, previously allowed action, especially when it is not in conflict with the command? If such a supposition would be unnatural and unreasonable, it follows that mandating trial by jury for some cases does not forbid it in others.

The power to establish courts is also the power to decide how trials are conducted; and so if the Constitution said nothing about juries, the legislature would be free to allow or not allow them. This discretion in criminal cases is limited by the explicit requirement of trial by jury in all such cases, but the same is not true for civil cases, as the Constitution is entirely silent in that regard. Though specifying that all criminal cases must have jury trials excludes any rule requiring civil cases to be tried the same way, it does not limit the legislature’s power to allow jury trials for civil cases if deemed appropriate. Therefore, the argument that the national legislature would not be free to submit federal civil cases to juries is completely unfounded.

From these points, the conclusion is clear: the trial by jury in civil cases would not be abolished, and the use of the cited maxims contradicts both reason and common sense, and should not be accepted. Even if these maxims had the precise technical meaning their advocates claim—which they do not—they still would not apply to a constitution of government. For such matters, the plain meaning of its provisions, apart from technicalities, is the true standard for interpretation.

Having considered that the maxims do not support the argument made, let us determine their proper use and real meaning. This is best done with examples. The convention’s plan states that Congress, or the national legislature, has power only in certain enumerated cases. This specific listing obviously excludes a general legislative authority; granting special powers expressly would make no sense if unlimited power was intended.

Similarly, the judicial power of the federal courts is specified by the Constitution to cover certain listed cases only. Naming those cases sets clear boundaries that federal courts cannot exceed, since the purposes of their jurisdiction are itemized, and the list would be pointless if it did not rule out the idea of broader authority.

These examples clarify the true purpose of the maxims and how they should be used. Yet to remove any doubt on this matter, I will add one more example to show the correct use of these maxims, as well as how they have been misapplied.

Suppose the laws of this State said a married woman could not transfer her property, and the legislature, considering this a problem, enacted that she might do so by a deed signed in the presence of a magistrate. Here, the law’s specification would obviously rule out other ways of transferring her property, since the woman had no prior power to do so; this creates the only mode she can use. But if a later section of the same law stated that no woman could transfer property over a certain value without the approval of her three closest relatives, indicated by their signing the deed, could one conclude from this that a married woman could not get her relatives’ approval for transferring property of lesser value? That theory is so absurd it barely needs refutation, and yet such is precisely what must be argued by those claiming that trial by jury in civil cases is abolished simply because it is explicitly required in criminal trials.

Thus, it is undeniably true from these points that trial by jury is not abolished in any case by the proposed Constitution. It is also true that, for disputes between individuals in which most people are likely to be interested, that institution remains precisely as it stands under State constitutions, and will not be changed or influenced by adopting the new federal plan. This is based on the fact that the national judiciary will not have authority over such cases; they will continue, as before, to be handled solely by State courts according to State constitutions and laws. All land disputes, except those involving claims under grants by different States, and all other disputes between citizens of the same State—unless there is a violation of the articles of union by State legislatures—will be under the exclusive jurisdiction of State courts. Additionally, admiralty cases and nearly all cases in equity are handled under our government without juries; so, as things stand now, the institution of trial by jury cannot be greatly affected by the proposed change in our government system.

Supporters and critics of the convention’s plan, whether they agree on anything else, are at least united in valuing trial by jury. If there is any difference, it is that the supporters call it an important safeguard of liberty, while the critics describe it as the very foundation of a free government. For my own part, the more I have seen the institution in practice, the more reasons I have found to value it greatly. It seems needless to debate how useful or essential it is in a representative republic, or if it is more valuable as a defense against a hereditary monarch than as a defense against abuses by popularly elected officials. Such debates would be more interesting than useful, since everyone agrees the institution is useful and friendly to liberty. Still, I cannot see an inseparable link between liberty itself and trial by jury in civil cases. Arbitrary accusations, arbitrary prosecutions for imaginary offenses, and arbitrary punishments based on such convictions have always seemed to me the main engines of judicial tyranny—and all are related to criminal, not civil, proceedings. The trial by jury in criminal cases, strengthened by the habeas corpus act, seems to be what this issue is really about. And both are provided for fully in the convention’s plan.

It has been claimed that trial by jury is a safeguard against oppressive taxation. This claim deserves to be examined.

It is obvious that the trial by jury has no effect on how much tax is levied, what is taxed, or how taxes are apportioned by the legislature. If it has any effect, it must be in the method of collection, and in the conduct of officers charged with executing the tax laws.

In fact, in this State under our own Constitution, jury trials are rarely used for tax collection. Taxes are normally collected by the quicker process of distress and sale, much like with rent. Everyone agrees that this is essential for effective revenue laws. A lengthy legal trial for collecting each individual’s taxes would not suit public needs or citizen convenience, and it would often create more expense than the original tax itself.

And as to the conduct of the officers of the revenue, the provision in favor of trial by jury in criminal cases, will afford the security aimed at. Wilful abuses of a public authority, to the oppression of the subject, and every species of official extortion, are offenses against the government, for which the persons who commit them may be indicted and punished according to the circumstances of the case.

The excellence of the trial by jury in civil cases appears to depend on circumstances foreign to the preservation of liberty. The strongest argument in its favor is, that it is a security against corruption. As there is always more time and better opportunity to tamper with a standing body of magistrates than with a jury summoned for the occasion, there is room to suppose that a corrupt influence would more easily find its way to the former than to the latter. The force of this consideration is, however, diminished by others. The sheriff, who is the summoner of ordinary juries, and the clerks of courts, who have the nomination of special juries, are themselves standing officers, and, acting individually, may be supposed more accessible to the touch of corruption than the judges, who are a collective body. It is not difficult to see, that it would be in the power of those officers to select jurors who would serve the purpose of the party as well as a corrupted bench. In the next place, it may fairly be supposed, that there would be less difficulty in gaining some of the jurors promiscuously taken from the public mass, than in gaining men who had been chosen by the government for their probity and good character. But making every deduction for these considerations, the trial by jury must still be a valuable check upon corruption. It greatly multiplies the impediments to its success. As matters now stand, it would be necessary to corrupt both court and jury; for where the jury have gone evidently wrong, the court will generally grant a new trial, and it would be in most cases of little use to practice upon the jury, unless the court could be likewise gained. Here then is a double security; and it will readily be perceived that this complicated agency tends to preserve the purity of both institutions. By increasing the obstacles to success, it discourages attempts to seduce the integrity of either. The temptations to prostitution which the judges might have to surmount, must certainly be much fewer, while the co-operation of a jury is necessary, than they might be, if they had themselves the exclusive determination of all causes.

Notwithstanding, therefore, the doubts I have expressed, as to the essentiality of trial by jury in civil cases to liberty, I admit that it is in most cases, under proper regulations, an excellent method of determining questions of property; and that on this account alone it would be entitled to a constitutional provision in its favor if it were possible to fix the limits within which it ought to be comprehended. There is, however, in all cases, great difficulty in this; and men not blinded by enthusiasm must be sensible that in a federal government, which is a composition of societies whose ideas and institutions in relation to the matter materially vary from each other, that difficulty must be not a little augmented. For my own part, at every new view I take of the subject, I become more convinced of the reality of the obstacles which, we are authoritatively informed, prevented the insertion of a provision on this head in the plan of the convention.

The great difference between the limits of the jury trial in different States is not generally understood; and as it must have considerable influence on the sentence we ought to pass upon the omission complained of in regard to this point, an explanation of it is necessary. In this State, our judicial establishments resemble, more nearly than in any other, those of Great Britain. We have courts of common law, courts of probates (analogous in certain matters to the spiritual courts in England), a court of admiralty and a court of chancery. In the courts of common law only, the trial by jury prevails, and this with some exceptions. In all the others a single judge presides, and proceeds in general either according to the course of the canon or civil law, without the aid of a jury.(1) In New Jersey, there is a court of chancery which proceeds like ours, but neither courts of admiralty nor of probates, in the sense in which these last are established with us. In that State the courts of common law have the cognizance of those causes which with us are determinable in the courts of admiralty and of probates, and of course the jury trial is more extensive in New Jersey than in New York. In Pennsylvania, this is perhaps still more the case, for there is no court of chancery in that State, and its common-law courts have equity jurisdiction. It has a court of admiralty, but none of probates, at least on the plan of ours. Delaware has in these respects imitated Pennsylvania. Maryland approaches more nearly to New York, as does also Virginia, except that the latter has a plurality of chancellors. North Carolina bears most affinity to Pennsylvania; South Carolina to Virginia. I believe, however, that in some of those States which have distinct courts of admiralty, the causes depending in them are triable by juries. In Georgia there are none but common-law courts, and an appeal of course lies from the verdict of one jury to another, which is called a special jury, and for which a particular mode of appointment is marked out. In Connecticut, they have no distinct courts either of chancery or of admiralty, and their courts of probates have no jurisdiction of causes. Their common-law courts have admiralty and, to a certain extent, equity jurisdiction. In cases of importance, their General Assembly is the only court of chancery. In Connecticut, therefore, the trial by jury extends in practice further than in any other State yet mentioned. Rhode Island is, I believe, in this particular, pretty much in the situation of Connecticut. Massachusetts and New Hampshire, in regard to the blending of law, equity, and admiralty jurisdictions, are in a similar predicament. In the four Eastern States, the trial by jury not only stands upon a broader foundation than in the other States, but it is attended with a peculiarity unknown, in its full extent, to any of them. There is an appeal of course from one jury to another, till there have been two verdicts out of three on one side.

From this sketch it appears that there is a material diversity, as well in the modification as in the extent of the institution of trial by jury in civil cases, in the several States; and from this fact these obvious reflections flow: first, that no general rule could have been fixed upon by the convention which would have corresponded with the circumstances of all the States; and secondly, that more or at least as much might have been hazarded by taking the system of any one State for a standard, as by omitting a provision altogether and leaving the matter, as has been done, to legislative regulation.

The propositions which have been made for supplying the omission have rather served to illustrate than to obviate the difficulty of the thing. The minority of Pennsylvania have proposed this mode of expression for the purpose—“Trial by jury shall be as heretofore”—and this I maintain would be senseless and nugatory. The United States, in their united or collective capacity, are the OBJECT to which all general provisions in the Constitution must necessarily be construed to refer. Now it is evident that though trial by jury, with various limitations, is known in each State individually, yet in the United States, as such, it is at this time altogether unknown, because the present federal government has no judiciary power whatever; and consequently there is no proper antecedent or previous establishment to which the term heretofore could relate. It would therefore be destitute of a precise meaning, and inoperative from its uncertainty.

As, on the one hand, the form of the provision would not fulfil the intent of its proposers, so, on the other, if I apprehend that intent rightly, it would be in itself inexpedient. I presume it to be, that causes in the federal courts should be tried by jury, if, in the State where the courts sat, that mode of trial would obtain in a similar case in the State courts; that is to say, admiralty causes should be tried in Connecticut by a jury, in New York without one. The capricious operation of so dissimilar a method of trial in the same cases, under the same government, is of itself sufficient to indispose every well-regulated judgment towards it. Whether the cause should be tried with or without a jury, would depend, in a great number of cases, on the accidental situation of the court and parties.

But this is not, in my estimation, the greatest objection. I feel a deep and deliberate conviction that there are many cases in which the trial by jury is an ineligible one. I think it so particularly in cases which concern the public peace with foreign nations—that is, in most cases where the question turns wholly on the laws of nations. Of this nature, among others, are all prize causes. Juries cannot be supposed competent to investigations that require a thorough knowledge of the laws and usages of nations; and they will sometimes be under the influence of impressions which will not suffer them to pay sufficient regard to those considerations of public policy which ought to guide their inquiries. There would of course be always danger that the rights of other nations might be infringed by their decisions, so as to afford occasions of reprisal and war. Though the proper province of juries be to determine matters of fact, yet in most cases legal consequences are complicated with fact in such a manner as to render a separation impracticable.

It will add great weight to this remark, in relation to prize causes, to mention that the method of determining them has been thought worthy of particular regulation in various treaties between different powers of Europe, and that, pursuant to such treaties, they are determinable in Great Britain, in the last resort, before the king himself, in his privy council, where the fact, as well as the law, undergoes a re-examination. This alone demonstrates the impolicy of inserting a fundamental provision in the Constitution which would make the State systems a standard for the national government in the article under consideration, and the danger of encumbering the government with any constitutional provisions the propriety of which is not indisputable.

My convictions are equally strong that great advantages result from the separation of the equity from the law jurisdiction, and that the causes which belong to the former would be improperly committed to juries. The great and primary use of a court of equity is to give relief in extraordinary cases, which are exceptions(2) to general rules. To unite the jurisdiction of such cases with the ordinary jurisdiction, must have a tendency to unsettle the general rules, and to subject every case that arises to a special determination; while a separation of the one from the other has the contrary effect of rendering one a sentinel over the other, and of keeping each within the expedient limits. Besides this, the circumstances that constitute cases proper for courts of equity are in many instances so nice and intricate, that they are incompatible with the genius of trials by jury. They require often such long, deliberate, and critical investigation as would be impracticable to men called from their occupations, and obliged to decide before they were permitted to return to them. The simplicity and expedition which form the distinguishing characters of this mode of trial require that the matter to be decided should be reduced to some single and obvious point; while the litigations usual in chancery frequently comprehend a long train of minute and independent particulars.

It is true that the separation of the equity from the legal jurisdiction is peculiar to the English system of jurisprudence: which is the model that has been followed in several of the States. But it is equally true that the trial by jury has been unknown in every case in which they have been united. And the separation is essential to the preservation of that institution in its pristine purity. The nature of a court of equity will readily permit the extension of its jurisdiction to matters of law; but it is not a little to be suspected, that the attempt to extend the jurisdiction of the courts of law to matters of equity will not only be unproductive of the advantages which may be derived from courts of chancery, on the plan upon which they are established in this State, but will tend gradually to change the nature of the courts of law, and to undermine the trial by jury, by introducing questions too complicated for a decision in that mode.

These appeared to be conclusive reasons against incorporating the systems of all the States, in the formation of the national judiciary, according to what may be conjectured to have been the attempt of the Pennsylvania minority. Let us now examine how far the proposition of Massachusetts is calculated to remedy the supposed defect.

It is in this form: “In civil actions between citizens of different States, every issue of fact, arising in actions at common law, may be tried by a jury if the parties, or either of them request it.”

This, at best, is a proposition confined to one description of causes; and the inference is fair, either that the Massachusetts convention considered that as the only class of federal causes, in which the trial by jury would be proper; or that if desirous of a more extensive provision, they found it impracticable to devise one which would properly answer the end. If the first, the omission of a regulation respecting so partial an object can never be considered as a material imperfection in the system. If the last, it affords a strong corroboration of the extreme difficulty of the thing.

But this is not all: if we advert to the observations already made respecting the courts that subsist in the several States of the Union, and the different powers exercised by them, it will appear that there are no expressions more vague and indeterminate than those which have been employed to characterize that species of causes which it is intended shall be entitled to a trial by jury. In this State, the boundaries between actions at common law and actions of equitable jurisdiction, are ascertained in conformity to the rules which prevail in England upon that subject. In many of the other States the boundaries are less precise. In some of them every cause is to be tried in a court of common law, and upon that foundation every action may be considered as an action at common law, to be determined by a jury, if the parties, or either of them, choose it. Hence the same irregularity and confusion would be introduced by a compliance with this proposition, that I have already noticed as resulting from the regulation proposed by the Pennsylvania minority. In one State a cause would receive its determination from a jury, if the parties, or either of them, requested it; but in another State, a cause exactly similar to the other, must be decided without the intervention of a jury, because the State judicatories varied as to common-law jurisdiction.

It is obvious, therefore, that the Massachusetts proposition, upon this subject cannot operate as a general regulation, until some uniform plan, with respect to the limits of common-law and equitable jurisdictions, shall be adopted by the different States. To devise a plan of that kind is a task arduous in itself, and which it would require much time and reflection to mature. It would be extremely difficult, if not impossible, to suggest any general regulation that would be acceptable to all the States in the Union, or that would perfectly quadrate with the several State institutions.

It may be asked, Why could not a reference have been made to the constitution of this State, taking that, which is allowed by me to be a good one, as a standard for the United States? I answer that it is not very probable the other States would entertain the same opinion of our institutions as we do ourselves. It is natural to suppose that they are hitherto more attached to their own, and that each would struggle for the preference. If the plan of taking one State as a model for the whole had been thought of in the convention, it is to be presumed that the adoption of it in that body would have been rendered difficult by the predilection of each representation in favor of its own government; and it must be uncertain which of the States would have been taken as the model. It has been shown that many of them would be improper ones. And I leave it to conjecture, whether, under all circumstances, it is most likely that New York, or some other State, would have been preferred. But admit that a judicious selection could have been effected in the convention, still there would have been great danger of jealousy and disgust in the other States, at the partiality which had been shown to the institutions of one. The enemies of the plan would have been furnished with a fine pretext for raising a host of local prejudices against it, which perhaps might have hazarded, in no inconsiderable degree, its final establishment.

To avoid the embarrassments of a definition of the cases which the trial by jury ought to embrace, it is sometimes suggested by men of enthusiastic tempers, that a provision might have been inserted for establishing it in all cases whatsoever. For this I believe, no precedent is to be found in any member of the Union; and the considerations which have been stated in discussing the proposition of the minority of Pennsylvania, must satisfy every sober mind that the establishment of the trial by jury in all cases would have been an unpardonable error in the plan.

In short, the more it is considered the more arduous will appear the task of fashioning a provision in such a form as not to express too little to answer the purpose, or too much to be advisable; or which might not have opened other sources of opposition to the great and essential object of introducing a firm national government.

I cannot but persuade myself, on the other hand, that the different lights in which the subject has been placed in the course of these observations, will go far towards removing in candid minds the apprehensions they may have entertained on the point. They have tended to show that the security of liberty is materially concerned only in the trial by jury in criminal cases, which is provided for in the most ample manner in the plan of the convention; that even in far the greatest proportion of civil cases, and those in which the great body of the community is interested, that mode of trial will remain in its full force, as established in the State constitutions, untouched and unaffected by the plan of the convention; that it is in no case abolished(3) by that plan; and that there are great if not insurmountable difficulties in the way of making any precise and proper provision for it in a Constitution for the United States.

The best judges of this issue will be the least eager for a constitutional establishment of trial by jury in civil cases, and will be the most willing to admit that the constant changes in society may make other methods of deciding property matters preferable in many cases where jury trials now prevail. For my part, I admit that even in this State, jury trials could usefully be expanded to some cases where they do not currently apply, and just as usefully be limited in others. All reasonable people agree that jury trials should not be used in every case. Examples of changes that have reduced its traditional scope, both in these States and in Great Britain, strongly suggest that its former extent was found inconvenient, and leave open the possibility that future experience may reveal the value of other exceptions. I suspect it is impossible by nature to determine the perfect boundary for this institution’s use, and for me, this is a strong reason to leave the matter to the legislature’s discretion.

This is now clearly recognized in Great Britain, and the same is true in the State of Connecticut; yet it can safely be said that more intrusions on trial by jury have occurred in this State since the Revolution—even though provided for by a specific article of our constitution—than in the same time in either Connecticut or Great Britain. It may also be noted that these intrusions have usually begun with men who claim to be the staunchest defenders of popular liberty, but who rarely let constitutional barriers hinder them in a favored cause. The reality is that the general GENIUS of a government is what can truly be relied on for lasting effects. Specific provisions, though not completely useless, have much less value and effectiveness than is commonly believed, and the lack of them will never be, for people of sound judgment, a decisive objection to any plan that otherwise displays the main qualities of a good government.

It certainly sounds rather harsh and extraordinary to claim that there is no security for liberty in a Constitution that specifically establishes the trial by jury in criminal cases, simply because it does not do so in civil cases as well; especially when it’s a well-known fact that Connecticut, long considered the most popular State in the Union, can boast of no constitutional provision for either.

PUBLIUS

1. It has been incorrectly implied regarding the court of chancery that this court generally tries disputed facts by a jury. In truth, references to a jury in that court rarely occur, and are only required where the validity of a devise of land is questioned.

2. It is true that the principles guiding such relief are now organized into a regular system; yet it remains true that they are mainly applied to SPECIAL circumstances, acting as exceptions to general rules.

3. See No. 81, where the idea of its abolition due to appellate jurisdiction in matters of fact being given to the Supreme Court is examined and refuted.

## FEDERALIST No. 84. Certain General and Miscellaneous Objections to the Constitution Considered and Answered.

### From McLEAN’s Edition, New York. Wednesday, May 28, 1788

HAMILTON

To the People of the State of New York:

Throughout the previous review of the Constitution, I have noticed and tried to answer most of the objections that have been raised against it. However, there remain a few which either did not fit naturally into any particular category, or were overlooked in their appropriate places. I will now address these; but since the subject has already grown lengthy, I will keep my observations on these miscellaneous points concise and contained in a single paper.

The most significant remaining objection is that the plan from the convention does not include a bill of rights. In response to this, it has been pointed out on various occasions that several State constitutions are in a similar position. I would add that New York is among them. Yet, those opposing the new system in this State, who say they greatly admire its constitution, are among the most passionate advocates for a bill of rights. To justify their enthusiasm, they argue two things: first, that although the New York constitution has no bill of rights at the beginning, it does contain, within its main body, various provisions favoring certain privileges and rights, which in essence amount to the same thing; second, that the Constitution adopts, fully, the common and statute law of Great Britain, thus securing many other rights not specifically mentioned.

To the first argument, I answer that the Constitution proposed by the convention includes, just as the constitution of this State does, a number of similar provisions.

Apart from those relating to the government’s structure, we see the following: Article 1, section 3, clause 7—“Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment according to law.” Section 9 of the same article, clause 2—“The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Clause 3—“No bill of attainder or ex-post-facto law shall be passed.” Clause 7—“No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state.” Article 3, section 2, clause 3—“The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.” Section 3 of the same article—“Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court.” And clause 3 of the same section—“The Congress shall have power to declare the punishment of treason; but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.”

It is reasonable to ask whether these are not, overall, just as important as any found in this State’s constitution. The establishment of the writ of habeas corpus, the ban on ex post facto laws, and on TITLES OF NOBILITY—all of which have no counterpart in our Constitution—may be even greater protections of liberty and republicanism than anything it contains. Creating crimes after the fact—in other words, punishing people for actions which, when done, broke no law—and the use of arbitrary imprisonment, have always been the preferred and most powerful tools of tyranny. The wise Blackstone’s comments(1) on the latter are well worth repeating: “To deprive a man of life,” he says, “or by violence to confiscate his estate, without accusation or trial, would be such a gross and blatant act of despotism that it would immediately raise the alarm of tyranny throughout the whole nation; but confinement of a person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.” As a remedy for this deadly evil, Blackstone is everywhere especially emphatic in his praise for the habeas corpus act, which in one place he calls “the BULWARK of the British Constitution.”(2)

There is no need to elaborate on the importance of banning titles of nobility. This could truly be called the cornerstone of republican government; for as long as such titles are excluded, there can never be real danger that the government will be anything other than of the people.

To the second argument—the supposed establishment of the common and state law by the Constitution—I answer that they are expressly made subject “to such alterations and provisions as the legislature shall from time to time make concerning the same.” Thus, they may be repealed at any time by ordinary legislative power, and therefore have no constitutional guarantee. The only purpose of this declaration was to acknowledge the old laws and to remove doubts that might have arisen after the Revolution. Therefore, it cannot be considered part of a declaration of rights, which, in our constitutions, must be intended as limits on government power itself.

It has been correctly noted that bills of rights originated as agreements between kings and their subjects, reductions of royal prerogative in favor of privilege, and reservations of rights not given up to the monarch. So it was with MAGNA CHARTA, secured by the barons, sword in hand, from King John. So it was with later confirmations of that charter by succeeding kings. So it was with the Petition of Right agreed to by Charles I at the start of his reign. And so it was with the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, later made an act of parliament called the Bill of Rights. It is clear, then, that according to their original meaning, such declarations do not apply to constitutions based on the power of the people and carried out by their direct representatives and officials. Here, strictly speaking, the people give up nothing; since they retain everything, there is no need for particular reservations. “WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” This is a better acknowledgment of popular rights than volumes of the maxims featured in several State bills of rights, which would fit better in a book of ethics than in a constitution of government.

A detailed list of individual rights is certainly far less relevant to a Constitution like the one in question, which is mainly intended to govern the general political interests of the nation, than it would be to a constitution that governs every kind of personal and private matter. If, then, the loud objections to the convention plan on this point are well founded, even the harshest criticism would not be too much for this State’s constitution. But in reality, each contains all that is reasonably needed in relation to its purpose.

I go further and affirm that bills of rights, in the sense and to the extent that they are argued for, are not only unnecessary in the proposed Constitution but may even be dangerous. They would include many exceptions to powers not granted; and, for this very reason, would provide a plausible pretext to claim more powers than are actually granted. Why declare that certain things should not be done when there is no power granted to do them? Why, for example, should it be said that the liberty of the press shall not be restrained, when no power has been given that would allow imposing such restrictions? I will not argue that such a provision would grant a regulatory power; but it is clear that it would give those inclined to usurp power a plausible excuse to claim such authority. They might reasonably contend that the Constitution should not be accused of the absurdity of guarding against misuse of a power that was never given, and that a provision against restraining the liberty of the press must imply that a power to regulate it was intended for the national government. This is one example of the many arguments that could be made for constructive powers, if an injudicious zeal for bills of rights were given free reign.

On the topic of the liberty of the press, despite what has already been said, I cannot help adding a few comments: first, I note there is not a single word about it in the constitution of this State; next, I contend that whatever has been said about it in the constitutions of any other States is ultimately meaningless. What does it matter to declare that “the liberty of the press shall be inviolably preserved”? What, exactly, is the liberty of the press? Who can provide a definition that would not leave plenty of room for evasion? I believe it is impossible; and because of this, I conclude that its security, no matter what fine words are put in any constitution, must depend entirely on public opinion and the general spirit of the people and the government.(3) Ultimately, as I have mentioned in another context, this is where we must seek the only true basis for all our rights.

There is only one remaining perspective to finish this point. The truth is that, after all the arguments we have heard, the Constitution itself is, in every reasonable sense and for every useful purpose, a BILL OF RIGHTS. The different bills of rights in Great Britain form its Constitution, and likewise, each State’s constitution is its own bill of rights. If adopted, the proposed Constitution will be the bill of rights of the Union. Is one purpose of a bill of rights to declare and specify the political privileges of citizens in the way the government is structured and managed? This is done in the most complete and precise way in the plan proposed by the convention; it includes many precautions for public security that are not found in any of the State constitutions. Is another purpose of a bill of rights to define certain immunities and procedures relating to personal and private matters? This has also been addressed in various instances in the same plan. So, regarding the true meaning of a bill of rights, it is absurd to claim that it is missing from the convention’s work. It could be said that it does not go far enough, though this would be difficult to prove; but it cannot be rightly argued that no such thing exists. It clearly does not matter what order is used to declare citizens’ rights, as long as these rights appear somewhere in the document that establishes government. Therefore, it should be clear that much of what has been said about this issue is based only on words and names, and is entirely irrelevant to the substance.

Another frequently repeated objection is this: “It is improper,” say the critics, “to grant such wide powers to the national government, because the seat of the government will necessarily be too far from many states for the people to be properly informed about the conduct of their representatives.” This argument, if it proves anything, suggests there should be no general government at all. For the powers that nearly everyone agrees should belong to the Union cannot be safely trusted to a governing body that isn’t under proper oversight. However, there are good reasons to show that this objection is actually not well-founded. Most distance-related arguments are clear exaggerations. How do people in Montgomery County, for instance, judge the actions of their state legislature representatives? They cannot benefit from personal observation—only citizens living where the legislature meets can do that. Instead, they must rely on information from intelligent people they trust; and how do those people get their information? Obviously, from the nature of public measures, from newspapers, and from correspondence with representatives and others at the seat of government. This situation is not unique to Montgomery County but is the same for all counties at some distance from the capital.

It is also clear that these same sources of information would be available to the people regarding their representatives in the general government, and any barriers to swift communication caused by distance will be outweighed by the vigilance of the State governments. The executive and legislative bodies of each State will act as sentinels over the national government’s officials in every department; since they have the power to maintain a regular and effective system of intelligence, they will always be aware of the conduct of those representing their constituents in the national councils, and can easily communicate this information to the public. Their willingness to alert the public to anything that might harm its interests from another quarter can be trusted, even if only because of competition for power. We may be confident that the people, through this channel, will be better informed about the actions of their national representatives than they currently are about those of their State representatives.

We should also remember that citizens who live at or near the seat of government will, in any matters affecting the general liberty and prosperity, have the same interests as those who live farther away and will be quick to sound the alarm and identify those involved in any harmful plan. The newspapers will be swift messengers of news, even to the most remote inhabitants of the Union.

Of all the unusual arguments against the proposed Constitution, the most extraordinary and least justified comes from the claim that no provision has been made for debts owed to the United States. It has been suggested that this is a tacit surrender of those debts, and a wicked trick to protect public defaulters. The newspapers have been filled with the most inflammatory attacks on this point; yet nothing is clearer than that such accusations are completely baseless—either the result of great ignorance or extreme dishonesty. Beyond what I have said about this elsewhere, let me add that both common sense and established political doctrine hold that “States neither lose any of their rights, nor are released from any obligations, by a change in the form of their civil government.”(4)

The last significant objection I recall concerns the matter of expense. Even if it were true that adopting the proposed government would lead to a significant increase in costs, this should not be a serious objection to the plan.

The majority of American citizens rightfully believe that Union is the foundation of their political happiness. People of sense from all parties now almost unanimously agree that this cannot be maintained under the present system, or without fundamental reforms; that broad new powers must be granted to the national government, and that these require a different federal organization—a single assembly cannot safely hold such broad authority. If we grant this, the cost argument must be abandoned, for it is impossible to restrict the structure on which the system will stand without risking its safety. The two legislative chambers will, at first, have only sixty-five members, the same number Congress may have under the current Confederation. True, this number is meant to grow, but only as population and resources increase in the country. Clearly, a smaller number would be unsafe even now, and to keep the same number as population increases would, later on, mean very inadequate representation.

So from what does the feared increase in expense arise? One source is claimed to be the greater number of offices under the new government. Let’s look at this.

The main departments of administration under the current government are essentially the same as needed under the new. There is now a Secretary of War, Secretary of Foreign Affairs, Secretary for Domestic Affairs, a Board of Treasury (three people), a Treasurer, assistants, clerks, etc. These roles are essential under any system, and will suffice under the new government as well. As for ambassadors and other ministers or agents abroad, the proposed Constitution would only make them more respected where they serve, and their duties more effective. As for those employed in collecting revenue, it is certainly true that they will significantly increase the number of federal officers; but this does not mean an increase in public expense. In most cases, it will simply be a replacement of State officers with national officers. For example, in collecting duties, all personnel would be employed by the national government. Individual States would no longer need such officers. What difference does it make in cost whether customs officers are paid by the States or by the United States? There is no good reason to think that the number or salary of the latter will exceed that of the former.

Where then should we look for those extra expenses that are supposed to make the total so dramatically large? The main item I identify is the support of the judges of the United States. I do not mention the President, because Congress currently has a president whose expenses may not be much, if any, less than those of the President of the United States. The support of the judges will surely be a new expense, but how much it is depends on the details of the final plan. Still, on any reasonable plan, the cost will not be enough to make a significant difference.

Now, let us see what savings might offset these extra costs. The first thing that comes to mind is that much of Congress’s current work will instead be handled by the President under the new system. Even managing foreign negotiations will naturally fall to him, following general principles agreed with the Senate, and subject to their approval. Thus, a portion of the year will suffice for both the Senate and the House of Representatives to be in session. For the House, about a fourth of the year; for the Senate, a third, or perhaps half, due to additional business such as treaties and appointments. This means, until the House grows well past its current size, there will be considerable savings because the sessions will be shorter than the current Congress, which sits nearly all year.

But there is an even more important point for economy. The business of the United States has so far kept State legislatures busy, as well as Congress. Congress has made requests that State legislatures have had to handle. This has meant that State legislatures have sat much longer than needed for only local business. More than half their time was often spent on matters for the United States. Now, the membership of all State legislatures is over two thousand, who have been doing what, under the new system, will be done by sixty-five people at first, and not likely more than a fourth or fifth of that number in the future. The new Congress will do all the business of the United States by itself, without relying on the State legislatures, who will then be able to focus just on their local State affairs, and will not have to be in session nearly as long as before. This reduced time in State legislative sessions will be a clear savings, and alone can balance out any added expenses from the new system.

In conclusion, these observations suggest that the sources of extra expense from adopting the proposed Constitution are much fewer than people suppose; that there will be significant savings to offset them; and while it may not be clear which way the balance tips, it is certain that a government costing less would not be able to meet the needs of the Union.

**PUBLIUS**

1. Vide Blackstone’s Commentaries, Vol. 1.

2. Idem, Vol. 4.

3. To show that there is a power in the Constitution by which the liberty of the press may be affected, some have cited the power of taxation. They claim that duties could be imposed on publications high enough to effectively prohibit them. I do not know how anyone could logically argue that declarations in State constitutions favoring freedom of the press would actually prevent State legislatures from taxing publications. It certainly cannot be claimed that any level of tax, however small, would violate the liberty of the press. We know that newspapers are taxed in Great Britain, yet it is well-known that nowhere does the press enjoy greater liberty than there. And if duties of any kind may be imposed without a violation of press freedom, then their extent must depend on legislative discretion; declarations about the liberty of the press provide no more security for it than would exist otherwise. The same abuses might occur under State constitutions with these declarations—through taxation—as under the proposed Constitution, which does not include such language. It would be equally significant to declare that government ought to be free, that taxes ought not to be excessive, etc., as it is to declare that the liberty of the press ought not to be restrained.

4. Vide Rutherford’s Institutes, Vol. 2, Book II, Chapter X, Sections XIV and XV. See also Grotius, Book II, Chapter IX, Sections VIII and IX.

## FEDERALIST No. 85. Concluding Remarks

### From MCLEAN’s Edition, New York. Wednesday, May 28, 1788

HAMILTON

To the People of the State of New York:

According to the formal division of topics announced in my first paper, two subjects might still remain for discussion: “the similarity of the proposed government to your own State constitution,” and “the additional security its adoption will provide to republican government, to liberty, and to property.” However, these topics have already been so thoroughly anticipated and addressed throughout this work, that it would be almost impossible to do anything now except repeat, at greater length, what has already been said—and the advanced stage of this question, and the time already spent on it, make such repetition inadvisable.

It is noteworthy that the similarities between the convention’s plan and the act that establishes this State’s government extend not just to many of the supposed flaws, but also to its real strengths. Among the alleged flaws are the re-eligibility of the Executive, the lack of a council, the omission of a formal bill of rights, and the absence of a specific provision concerning the freedom of the press. These and several others mentioned throughout our discussion are as existent in the current constitution of this State as in the proposed framework for the Union. Anyone who criticizes the latter for imperfections that he easily excuses in the former must be lacking in consistency. In fact, no better proof could exist of the insincerity and affectation of certain zealous opponents among us—who claim to be devoted admirers of our current government—than the excessive criticism they unleash against the new plan for issues where our own constitution is equally or more vulnerable.

The additional securities for republican government, liberty, and property that come from adopting the proposed plan mainly arise from the restraints that preserving the Union will place on local factions and uprisings, and on the ambitions of powerful individuals within single States. Such people might otherwise gather enough support and influence to become tyrants over the people. Adoption also reduces opportunities for foreign meddling, which the collapse of the Confederacy would invite and make easier; it prevents the establishment of large standing armies, which would inevitably arise from wars between States if disunited; provides an explicit guarantee of a republican form of government to each State; absolutely excludes titles of nobility; and puts in place protections against the repetition of practices by State governments that have undermined property and credit, sown distrust among citizens, and nearly destroyed public morals.

So, fellow citizens, I have completed the task I set for myself; how successful I have been, your actions must decide. At the very least, I hope you recognize that I have kept my pledge regarding the spirit in which I would make my arguments. I have appealed only to your judgment and have made a point to avoid the harshness that so often taints political debate on all sides—and which has been significantly provoked by the words and actions of the Constitution’s opponents. The constant accusation of a conspiracy against the people's freedoms, leveled indiscriminately against supporters of the plan, is so reckless and malicious that it should provoke the indignation of anyone who knows within himself the falsehood of the claim. The nonstop slanders against the wealthy, the well-born, and the powerful have become tiresome to any sensible person. The intentional concealments and misrepresentations, carried out in various ways to hide the truth from the public, deserve the condemnation of all honest men. It is possible these provocations may have sometimes led me to an unintentional sharpness of expression; I admit I have often struggled to balance feeling with moderation. If, on occasion, feeling has won out, my only excuse is that it happened neither often nor to any great extent.

Let us pause now and consider whether, in these papers, the proposed Constitution has not been adequately defended from the criticisms hurled against it—and whether it has not been demonstrated to deserve public approval, and to be essential for public safety and prosperity. Every man must answer these questions for himself, according to his conscience and understanding, and act in accordance with his sincere and sober judgment. Nothing can excuse him from this duty. He is called upon—indeed, compelled—by every obligation that binds society to carry it out sincerely and honestly. No personal motive, private interest, pride of opinion, or fleeting passion or prejudice can justify to himself, his country, or his descendants, a poor choice of action. Let him beware of an unyielding devotion to his party; let him reflect that the subject he must decide is not a mere narrow community interest, but the very existence of the nation itself; and let him remember that a majority of America has already given its endorsement to this plan he is to approve or reject.

I do not conceal that I feel complete confidence in the arguments recommending this system for your adoption, and that I find no real merit in those used against it. I am convinced it is the best our political situation, habits, and beliefs will allow, and superior to any that the revolution has yet created.

Admissions by the supporters of the plan that it is not perfect have provided ammunition to its opponents. “Why,” they ask, “should we adopt something imperfect? Why not change it and make it perfect before fully committing?” This sounds plausible, but it is only that. First, I point out that these admissions have been greatly exaggerated. They have been twisted into a claim that the plan is fundamentally flawed, and that without significant changes, the community’s rights and interests cannot be safely trusted to it. As far as I can tell from the context of such admissions, this is a complete misrepresentation. No supporter of the measure will fail to say that, although the system may not be perfect in every detail, on the whole it is sound; it is the best that current circumstances and perspectives allow; and it offers every level of security any reasonable people could wish for.

Next, I say it would be extremely reckless to keep the nation in its uncertain present state, putting the Union at risk by pursuing endless experiments in a fanciful quest for a perfect plan. I never expect perfection from imperfect men. The result of all group deliberations is inevitably a mix of errors and biases along with the wisdom and common sense of their members. Any agreement meant to unify thirteen different States under one bond of friendship and union must, likewise, be a compromise between as many different interests and preferences. How could perfection arise from such materials?

The arguments in an excellent recent pamphlet published in this city(1) convincingly show how unlikely it would be to convene a new convention under circumstances as favorable as those in which the late convention met, deliberated, and finished its work. I will not repeat those arguments, as I believe the pamphlet has been widely circulated. It certainly deserves every patriotic citizen’s consideration. Still, there is one more angle on the subject of amendments that should be considered and which has yet not been presented to the public. I will not conclude without addressing this.

I believe it can be clearly demonstrated that it will be much easier to obtain amendments to the Constitution afterward, rather than before its adoption. The moment any change is made to the current plan, it becomes a new one for purposes of adoption, and must undergo fresh approval by each State. For this new plan to be established throughout the Union, it must have the assent of all thirteen States. But, if the current proposal is once ratified by all States as it is, any future amendments can be made whenever nine States agree. Therefore, the chances of success are as thirteen to nine(2) in favor of adding amendments later, instead of trying to get an entire system approved up front.

But there is more. Every United States Constitution must inevitably be detailed, accommodating a range of interests or perceptions of interest across thirteen independent States. We should expect that any group tasked with creating such a document from scratch will form shifting majorities on different issues. Those who make up a majority on one question may become a minority on the next, and a different coalition may become the majority on a third. Thus, all of the details must be arranged in a way to satisfy all parties—and this multiplies the difficulties and chance events affecting approval. The degree of difficulty clearly increases with the number of points and parties.

Once a Constitution is established, however, every amendment would be just a single proposal and could be considered separately. There would be no need for horse-trading or compromise regarding other issues—no giving, no taking. Once the necessary number of States wants an amendment, it will quickly come to a decision. So, whenever nine, or rather ten, States agree on a particular amendment, that change is sure to happen. Clearly, amending afterwards is far easier than setting up a complete Constitution from scratch.

Some argue that it is unlikely later amendments would happen, since those in charge of the government would never want to give up any power they hold. Personally, I am convinced that any useful amendments will address the organization of government, not its fundamental powers. For that reason alone, I do not think the objection holds up. I also think it fails for another reason: The inherent difficulty of governing thirteen States will, regardless of general virtue or public spirit, always force national leaders to compromise and accommodate the reasonable expectations of their constituents. But beyond this, there is another fact that definitively disproves the objection. Article V of the Constitution requires Congress, on request from the legislatures of two-thirds of the States (currently nine), to call a convention to propose amendments, which become law when ratified by three-fourths of the States, through their legislatures or special conventions. The language of this article is unequivocal: Congress “shall call a convention.” This leaves nothing to Congress’s discretion. Therefore, all complaints about an unwillingness to permit changes disappear entirely. Even if it were difficult to unify two-thirds or three-fourths of State legislatures on amendments affecting local interests, there should be no such difficulty in areas related to the general freedom or security of the people. We can safely trust State legislatures to want to guard against excessive power from the national government.

If my argument above is mistaken, then I am truly deceived; for, to my mind, this is one of those rare political truths that can be proven almost as firmly as a mathematical theorem. Those who see this as I do—however much they may want amendments—must agree it is best to adopt the Constitution first, as the most direct way to reach their own goals.

Anyone intent on amending before the Constitution is established must reconsider if he agrees with the following wise words from a writer as sound as he is clever: “To balance a large state or society (says he), whether monarchical or republican, on general laws, is a work of so great difficulty, that no human genius, however comprehensive, is able, by the mere dint of reason and reflection, to effect it. The judgments of many must unite in the work; EXPERIENCE must guide their labor; TIME must bring it to perfection, and the FEELING of inconveniences must correct the mistakes which they inevitably fall into in their first trials and experiments.”(3) These thoughtful reflections provide a lesson in moderation for all sincere lovers of the Union, and they should warn us not to risk anarchy, civil war, alienation among the States, or possibly military tyranny, in an unrealistic pursuit of something that only TIME and EXPERIENCE can produce. Maybe I lack political toughness, but I admit I cannot feel the same calm as those who dismiss the dangers of staying longer in our current state as imaginary. A nation without a national government is, to me, a grave sight. The creation of a Constitution in a time of peace, by the voluntary agreement of the entire people, is a wonder—one I await with nervous hope. I cannot see how it would be prudent, having secured the agreement of seven out of thirteen States in such a difficult undertaking, to give up that position after so much progress, just to start over. I am even more wary of trying again because I know that powerful individuals in this, and other States, are opposed to any sort of general national government.

PUBLIUS

1. Titled “An Address to the People of the State of New York.”

2. It might more accurately be said TEN, since although two-thirds can initiate the measure, three-fourths must ratify it.

3. Hume’s Essays, Vol. I: “The Rise of Arts and Sciences.”